Due to the recent economic crisis’ harmful effect on Florida properties, local government code enforcement officials have concentrated their efforts toward addressing the foreclosure crisis head-on. In order to effectively maintain and stabilize neighborhoods, local government proceedings have attempted to decrease the damaging effects caused by social and economic harm of vacant and abandoned properties contributing to the deterioration of Florida’s neighborhoods. Specifically, the growing use of quasi-judicial proceedings pursuant to Chapter 162 of the Florida Statutes has provided an efficient and timely procedure toward obtaining compliance with local government codes. The Author discusses issues such as code enforcement officers’ search of premises, fundamental and procedural due process, constitutional challenges to code enforcement proceedings, and the privatization and collection of code enforcement liens. The Author discusses in detail the development of code enforcement law by referring to Florida appellate court decisions. This Article seeks to provide legal practitioners with a better understanding of how these quasi-judicial proceedings operate and the future of the law involving local government code enforcement proceedings.
Page 1 of 3
This Article analyzes the 2011 changes to Florida’s growth management legislation and the negative impact these changes present for urban sprawl in Florida. In June 2011, the legislature enacted the Community Planning Act, which makes significant changes to Florida’s previous growth management scheme. The Community Planning Act greatly reduces the State’s role in overseeing land use planning and eliminates mandatory concurrency requirements for schools, transportation, and parks and recreation. This Article argues that by making these changes, Florida’s legislature is improperly using a statute intended for long-term planning in an attempt to curb the effects of the current economic crisis, while ignoring sprawling growth’s destructive impact on Florida’s valuable resources and landscape.
This Article ultimately calls for legislative reform in the growth management arena and proposes that Florida should incentivize smart-growth techniques on a state level by limiting public funding to designated suitable-growth areas and providing incentives for developers to build in these areas. Alternatively, this Article proposes that local governments use the increased control they are granted under the Community Planning Act to discourage sprawl by retaining concurrency, creating more mixed-use development zones, and implementing form-based code.
Since the 1980s, Florida has experienced a condominium-conversion “craze,” during which developers converted huge numbers of apartment complexes to the condominium form of ownership. The resulting oversupply of condominiums is a major component in the Florida real estate market bubble and consequent economic downturn. Condominium conversions are linked to many social ills, including depleting affordable housing, increasing foreclosure rates, building degradation, increased vacancies and resulting crime, and urban blight. This Article addresses condominium conversions’ consequences and suggests that it is necessary to change Florida’s regulatory scheme to resolve many of the issues that have proliferated under the current law. This Article provides a detailed analysis of Florida legislation regulating condominium conversions, including the Roth Report and the Roth Act, and offers an in-depth comparison of several states’ condominium-conversion regulations. This Article suggests that the power to regulate condominium conversions should rest with municipalities. It further argues that amending Florida law to recognize a condominium conversion as a change in property use and a subdivision of property-not just a change in ownership-would allow local governments, those closest to the communities in question, to have greater control over conversions. Finally, the Article concludes that such changes in Florida’s regulations would resolve many of the unwanted side effects of irresponsible condominium conversion.
This Article examines the Supreme Court’s determination in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), that the Florida Supreme Court’s upholding of Florida’s Beach and Shore Preservation Act did not constitute a “taking” of a landowner’s property, which would require just compensation under the Fifth Amendment of the United States Constitution. The Article assumes, as set forth by Justice Scalia’s plurality, that a judicial takings doctrine exists. Employing the hypothetical proposed by Chief Justice Roberts, this Article examines the various legal avenues, procedural and otherwise, available to a landowner aggrieved by a judicial “taking.”
The Article initially addresses an aggrieved landowner’s options for recourse in state court: moving to rehear the Florida Supreme Court decision or filing an entirely new action in a local circuit court. Given the unlikelihood that lower state courts would overturn a Florida Supreme Court decision and the ease with which the Florida Supreme Court could deny a motion to rehear, the Author notes that the state-court avenue is filled with procedural hurdles likely to leave the landowner without relief.
The Article then discusses how the same hypothetical would unfold in the federal courts when a landowner asserts that the Florida Supreme Court decision worked as a taking. The Article details the federalism issue at play, concluding that the current doctrine would actually bar the aggrieved landowner from seeking relief in federal court but would allow similarly situated landowners to file their own claims. The Article also notes the abstention and immunity obstacles that the similarly situated landowners would face in their claims. Even though a landowner’s chances of obtaining relief are slightly better in the federal court system, the Article concludes with a plea to the United States Supreme Court for guidance regarding this complicated judicial takings doctrine.
Florida’s Save-Our-Homes Cap constitutionally limits the amount a homestead’s assessed value may increase each year and thus controls the taxable value of a homestead. However, when there is a change in the homestead’s ownership, the property is reassessed at its actual value without regard to the Save-Our-Homes Cap. Florida law provides that a change of ownership does not occur upon the death of the owner when title is transferred to a permanent resident of the property who was legally or naturally dependent on the deceased owner. This Article details the ongoing debate regarding precisely who is considered legally or naturally dependent and specifically addresses a recent Florida appellate court decision excluding a deceased man’s son from the definition. The Author analyzes factors relevant to the construction of statutory language including, among others, legislative intent, the State’s evolving interpretation of the language, and its relationship with other pertinent law. After completing this synthesis and recounting the factual background of the Florida appellate case, the Article concludes that the court wrongly interpreted the statutory language and proposes that upholding the intent of the Save-Our-Homes Cap requires broadening the class of persons to whom it applies.
The Florida Supreme Court’s 2012 decision in Telli v. Broward County upheld Broward County’s ability to impose a term limit on county commissioners. The Author argues that this decision granted local governments a constitutionally impermissible ability to create this disqualification from public offices in spite of longstanding precedent. The Author provides unique insight because he argued in front of the Fourth District Court of Appeal and the Florida Supreme Court on William Telli’s behalf. He translates his deep understanding of the case to this Article, providing an explanation of the tension between protections under the Florida Constitution and local government power.
As examined by this Article, Article VI, Section 4(b) of the Florida Constitution authorizes term limits for certain specified offices. The Article argues that before Telli, Florida courts interpreted this Section to mean that local governments could not impose qualification requirements on offices not listed in Section 4(b). Century-old Florida Supreme Court precedent prohibits local governments from imposing term limits, or any other disqualifications, on constitutionally authorized offices. Despite this well established precedent, Telli upheld such term limits, seemingly going against many years of Florida constitutional jurisprudence. The Author thus argues that the Court’s decision in Telli improperly deviates from deep-rooted precedent without providing any solid reasoning for the sudden departure. This Article warns that the Florida Supreme Court’s decision in Telli could shake the legal community’s confidence in relying on long-standing precedent.
In this Article, the Authors examine the efficacy of the current “onesize-fits-all” three-prong test that Florida’s district courts of appeal apply to non-final orders pending in circuit court cases. The Authors propose that courts instead apply a more functional approach that considers the legitimate and practical reasons for appellate court interference into ongoing trial court cases. The current standard requires that non-final orders constitute a “departure from the essential requirements of law” and demonstrate an “irreparable injury”; however, the Authors note that those subjective standards are often difficult to construe, leaving district courts with little guidance, and invite too much discretion by judges. This Article suggests that a functional approach would more efficiently achieve the goals of certiorari review and make the decision-making process more uniform and transparent-a process that would be more easily understood by both judges and lawyers.
This Article reviews the current three-prong approach that Florida district courts of appeal apply in determining whether to grant interlocutory certiorari review of a non-final trial court order, and presents an alternative test for Florida district courts of appeal to apply when making such a determination. The Authors present the shortcomings of the current approach and apply the proposed functional restatement to three types of orders in which the current test is likely to be problematic in its application and is likely to result in denial of certiorari review. The Authors then address the difficulties associated with convincing appellate courts to adopt the functional restatement and present potential shortcomings of the functional restatement. The Article concludes that the functional restatement should not be adopted in place of the current three-prong analysis, but that it can and should be used in arguing for the expansion of the types of orders reviewable under Florida Rule of Appellate Procedure 9.130.
This Article responds to two recent Florida Bar Journal articles in which Judge Chris W. Altenbernd and Jamie Marcario argue for a new standard for deciding petitions for certiorari in Florida’s court system. With the stated goal of remedying the lack of predictability under the current status, Judge Altenbernd and Ms. Marcario propose functional language, which they state would not significantly change the historic scope and use of the writ of certiorari. This Article explains that such a significant change could occur if the proposed standard were applied to non-final orders implicating the right to due process. Specifically, this Article points out that the Florida Supreme Court has consistently declined to create an automatic right to certiorari review for certain non-final orders; however, Judge Altenbernd and Ms. Marcario’s proposal would take away from the Court the constitutionally granted right to control which kinds of orders are subject to certiorari review.