IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA The City of Key West, Florida, Petitioner, v. Kathy Rollison, Respondent. Supreme Court Case No. SC PETITIONER'S JURISDICTIONAL BRIEF (Amended) On Review from the District Court of Appeal, Third District, State of Florida. Case No. 3D THE CITY OF KEY WEST Robert Tischenkel City Attorney Florida Bar No B Simonton Street Key West, FL Phone: (305) Fax: (305) Attorney for Petitioner

2 TABLE OF CONTENTS Table of Contents...i Table of Authorities...ii Jurisdictional Statement... 1 Statement of the Case and Facts... 1 Summary of the Argument... 4 Argument... 5 I. The decision below conflicts with Supreme Court and district court of appeal case law holding that a use of property must strictly conform to a local government=s Comprehensive Plan... 5 II. The decision below conflicts with an axiomatic rule of land use law that a use must be legal before a change of zoning law occurs in order to become a legal non-conforming use... 7 Conclusion... 8 Certificate of Service... 9 Certificate of Compliance... 9 Appendix -i-

3 CASES TABLE OF AUTHORITIES PAGE Cotney v. Board of County Commissioners of Brevard County, 140 So.2d 877 (Fla. 2 nd DCA 1962)...7 Florida Wildlife Federation v. Collier County, 819 So.2d 200 (Fla. 1 st DCA 2002)...6 Shidel v. Pinecrest Lakes, Inc., 795 So.2d 191 (Fla 4 th DCA 2001)...5 Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993)...5 STATUTES PAGE Florida Statutes ch. 163, Part II (2003)...6 Florida Statutes ' (2003)...2 Florida Statutes ' (2003)...2 MISCELLANEOUS Abbe v. Department of Community Affairs, Final Order No. DCA00-GM297 (March 13, 2001)... 3,6 Fla. Const. Art. V, sec. 3(b)(3)...1 Fla. R.App. P (a)(2)(A)(iv)...1 -ii-

4 JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. Art. V, sec. 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). STATEMENT OF THE CASE AND FACTS In 1997, Kathy Rollison (ARollison@) purchased a unit in the Shipyards Condominium within the Truman Annex Development of Key West. Rollison intended to use the unit as a vacation home and rent it on a short-term basis during her absences from Key West. The Truman Annex Development opened in Between then and the end of 1997, a controversy arose in Key West whether its residential units could be rented on a short-term or Atransient@ basis (fewer than 30 days). The City of Key West (the ACity@) issued no residential transient rental licenses to Truman Annex -1-

5 property owners during this time period, although under the City=s Rate of Growth Ordinance formula more than 500 such licenses were issued to residential property owners in other areas of the city. The local real estate industry developed and promoted an interpretation of the City=s zoning code at the time to allow short-term rentals of residential properties in the Truman Annex. So long as the unit was used for this purpose for less than half the year -- the so-called A50% -- the rentals would not be subject to City zoning, licensing or Comprehensive Plan limits. To some extent the City acceded to this interpretation by failing to enforce against it. 1 The change of land use brought about by the A50% Rule@ was not rendered to the Florida Department of Community Affairs (the ADepartment@) for review under Area of Critical State Concern procedures as required by law. 2 In late 1997, the Key West City Commission embarked on a series of workshops, in response to complaints by residents throughout the City, to develop -2-1 The Third District=s decision ascribes the genesis of the A50% Rule@ interpretation to City officials, contrary to the evidence at trial. 2 Key West is located in an Area of Critical State Concern and therefore must render its land development regulations to the Department for approval. Fla. Stat. secs , (2003).

6 a comprehensive transient rental ordinance. The complaints were twofold: that the use of residences in a residential zoning district as quasi-hotel rooms caused neighborhood disturbances; and that the removal of residential units from a longterm housing stock delimited by a Rate of Growth Ordinance had a detrimental effect on affordable housing prices. The City Commission enacted Ordinance No which declared a ban on unlicensed transient rental use and the end of the A50% Rule,@ except in certain areas of the City, including the Truman Annex. The Department rejected this ordinance as contrary to the City=s Comprehensive Plan because it allowed transient rental use in excess of Comprehensive Plan limits and in residential zones where transient rental use was not permitted. As a result, the City enacted Ordinance No which banned unlicensed transient rental units in all areas of the City. This ordinance became the subject of an administrative trial in In upholding the ordinance, the Administrative Law Judge examined the A50% Rule@ and found that it had been unlawful from its inception. 3, Abbe v. Department of Community Affairs, Final Order No. DCA00-GM297 (March 13, 2001). 4 Ordinance No was replaced verbatim by Ordinance No after the former was found to be enacted with a notice defect.

7 In the midst of this controversy Rollison purchased her unit from a seller (and broker) who represented to her that she could rent on a transient basis with a Anon-transient@ occupational license. After the City enacted its new ordinance, the City advised Rollison and all others in the Truman Annex that it could not rely on the A50% Rule.@ Rollison filed a declaratory judgment action in circuit court seeking a declaration that her unit was a lawful non-conforming use. The circuit court ruled in favor of the City and enjoined Rollison from further engaging in short-term rentals. The Third District Court of Appeal reversed, holding that the Rollison unit was grandfathered. The City petitioned for rehearing and the Department joined the City at this stage by filing an amicus brief. The petition for rehearing was denied on June 30, SUMMARY OF THE ARGUMENT The decision of the Third District Court of Appeal conflicts with Supreme Court and district court case law that requires a local government to authorize the use of land in strict conformance with that local government=s Comprehensive Plan. The decision also conflicts with a fundamental and well-established rule of the law of land use non-conformities: an illegal use of land cannot evolve into a legal nonconforming use. -4-

8 ARGUMENT I. The decision below conflicts with Supreme Court and district court of appeal case law holding that a use of property must strictly conform to a local government=s Comprehensive Plan. The Third District decision below is in direct conflict with Shidel v. Pinecrest Lakes, Inc., 795 So.2d 191 (Fla 4 th DCA 2001) which holds that: (1) all development (or use of land) must be consistent with a local government=s Comprehensive Plan; (2) the development is subject to strict scrutiny under the Comprehensive Plan; and (3) a local government has no discretion in its interpretation of its Comprehensive Plan. 5 The Fourth District in Shidel in part relied upon this Court=s observations in the Snyder case, the leading land use case of recent vintage. Shidel v. Pinecrest Lakes, Inc., 795 So.2d at (citing Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993)). Because Snyder determined the need for strict compliance with a Comprehensive Plan, the decision below also conflicts with Snyder. Id. at The Fourth District in adamant support of these holdings agreed with the trial court that the proper remedy was demolition of multi-million dollar apartment buildings that were erected in violation of the Comprehensive Plan.

9 From another angle, the decision below directly conflicts with Florida Wildlife Federation v. Collier County, 819 So.2d 200 (Fla. 1 st DCA 2002) in which the First District held that the courts must be highly deferential to the Department=s interpretation of its operating statutes. Florida Statutes chapter 163, Part II governs the Comprehensive Plan process. The Department rejected Key West Ordinance No as violative of the City=s Comprehensive Plan because it authorized certain unlicensed transient rentals in the Truman Annex. According to Wildlife Federation, the Department=s construction of the City=s Comprehensive Plan was entitled to deference by the Third District. Subsequently, two triers of fact B an administrative law judge assigned by the Division of Administrative Hearings in Abbe and the trial judge in the instant case B found the A50% Rule@ to be illegal. The Third District=s decision misplaced its deference: rather than deferring to the Department and two triers of fact who each examined the issue in the context of the Comprehensive Plan, the Third District instead deferred to a repudiated administrative interpretation by City officials that was random, unsystematic and unauthorized. The Third District circumvented the Comprehensive Plan issue. This establishes an apparent conflict for jurisdictional purposes. Even more express a conflict is examined below in the City=s second argument. -6-

10 II. The decision below conflicts with an axiomatic rule of land use law that a use must be legal before a change of zoning law occurs in order to become a legal non-conforming use. The decision below turns the law of non-conforming use upside down by allowing a grandfathering of an unlawful use. Between the initial development of the Truman Annex and the enactment of the City=s transient rental law, the zoning and occupational laws did not support the short-term rental of the Rollison unit. Nor did the City=s Comprehensive Plan policies. Nor did the Development Agreement that underlay the development of the Truman Annex, which identified the Shipyards Condominiums as an affordable residential complex with no transient rental use. Thus the Third District opinion is in direct conflict with Cotney v. Board of County Commissioners of Brevard County, 140 So.2d 877(2 nd DCA 1962) in which the Second District held that where a building was erected without permits, in violation of zoning requirements, the property owner did not accrue a Avested@ (or legally non-conforming) right after a change in zoning regulations. -7-

11 CONCLUSION The Third District=s decision has placed the City in an absurd position. The City must respond to the decision by enacting new legislation to implement the A50% for Rollison and similarly situated property owners. The City then would have to render this legislation to the Department for approval. Assuming the Department is true to itself and its precedents, it would reject the legislation. This untenable situation results from an appellate decision that conflicts with a statewide Comprehensive Plan process set forth in statute and accepted by this Court. Therefore, in this matter, a grant of discretionary jurisdiction is warranted and necessary. Respectfully submitted, THE CITY OF KEY WEST Robert Tischenkel City Attorney Florida Bar No

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above PETITIONER=S JURISDICTIONAL BRIEF (Amended) has been furnished via U. S. Mail to Joseph P. Thacker, Cooper & Walinski, 900 Adams Street, Toledo, OH 43624, Jerry Coleman, P.L. 201 Front Street, Suite 203, Key West, FL and Timothy Dennis, Florida Department of Community Affairs, 2555 Shumard Oak Blvd., Tallahassee FL on this day of August, THE CITY OF KEY WEST Robert Tischenkel CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with Rule 9.210(a)(2). It is typed in Times New Roman 14-point type and is double-spaced. Robert Tischenkel -9-