Florida Land Use Law

Back in Blog!

2015-05-17T16:31:00.001-04:00

After a significant hiatus, I'm back posting blog entries.

I'm now back to being a sole practitioner, with a focus on litigation involving land use and local government law issues.

If there's a case you want me to cover, email me a link or the opinion at robert.lincoln@flalandlaw.com.

Best

Robert

Charter Amendment was Not a Plan Amendment: City of Riviera Beach v. Riviera Beach Citizens Task Force et al, 87 So. 3d 18 (Fla. 4th DCA 2012).

2015-05-17T16:22:00.001-04:00

In a case challenging a charter amendment that would put specific restrictions on the use of certain publicly owned upland and submerged land, the circuit court found the proposed ballot language was not ambiguous, the amendment was not placed on the ballot in violation of the governing statute, and the ballot did not violate the “anti-referendum” provision of § 163.3167(12), Fla. Stat. The District Court upheld the circuit court on all points.

With respect to the final matter, the City and the Redevelopment Agency that owned the land argued that the prohibitions eliminated uses permitted under the comprehensive plan and zoning, and therefore would require amendments to the plan and zoning. The circuit court and district court disagreed, and the district court found there were still uses for the affected property, that were consistent with the Comprehensive Plan.

Given the findings, the result was not surprising. For whatever reason, the City did not challenge the amendment as an LDR that required hearings under § 163.3194. This points out a problematic hole in § 163.3167(12), even after recent amendments - while plan amendments and development orders are not subject to referenda, land development code changes are subject to referenda. We’ll see if the statute is expanded to include LDRs after some decisions like this which still leave the development of specific sites subject to referenda.

The United States Supreme Court Clarifies Nolan and Dolan to Include Cash Payment Demands and Demands that Result in a Denial of the Development Order: C. Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013), and St. Johns River Water Management District v. Koontz, 77 So. 3d 1220 (Fla. 2012).

2015-05-17T16:20:00.001-04:00

In a divided 5-4 opinion, the U.S. Supreme Court (“SCOTUS”) overturned the Florida Supreme Court (“SCOF”) decision in Koontz. The core and critical holdings: the “unconstitutional conditions” doctrine underlying the Nollan and Dolan decisions applies in the land use regulatory context to cash exactions as well as demands for a direct interest in land (land or easements), and also can apply (but may not always) where no cash or exaction changes hands because the government agency denies the application at hand. I will let the majority opinion speak for the Court’s logic:

Nollan and Dolan …. allow[] the government to condition approval of a permit on the dedication of property to the public so long as there is a “nexus” and “rough proportionality” between the property that the government demands and the social costs of the applicant's proposal. Dolan, supra, at 391, 114 S.Ct. 2309; Nollan, 483 U.S., at 837, 107 S.Ct. 3141. Our precedents thus enable permitting authorities to insist that applicants bear the full costs of their proposals while still forbidding the government from engaging in “out-and-out ... extortion” that would thwart the Fifth Amendment right to just compensation. Ibid. (internal quotation marks omitted). Under Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.

The full complexity and ramifications of the decision will be debated for years and cases to come, so I will touch only on a few brief and important points.

First, the full application of the decision on the case itself will not be resolved until the Florida Supreme Court addresses it on remand because SCOTUS refused to address or resolve the large number of Florida procedural and statutory law issues the SCOF dodged by (incorrectly) interpreting the federal takings issues. These include when and whether a plaintiff may proceed under special statutory “compensation” provisions (like the one at play here) without going through the full APA process to challenge the validity of the administrative action. This was also mangled by everyone in the Save Our Beaches case. The particular Florida statute created the damages remedy that was at issue here - SCOTUS left open the remedy for an illegal exaction in cases where there is not a statutory damages remedy.

Second, it is very unclear how and when a landowner will be able to bring a Koontz-based claim of extortionate demands under the DRI (or more “standard” local government) development procedures. Here, the District walked (or was walked) into a documented denial based on the demand for off-site improvements without any “formal” analysis or relationship between the impact on wetlands and the demand for off-site improvements. I would note that the essential action occurred in 1993, and could not happen under the current wetland regulatory regime in Florida. In fact, no demand for a valid impact fee or regulatory fee in Florida will fall afoul of Koontz.

However, programs like Pasco County’s recently invalidated right-of-way dedication ordinance, that do not tie required dedications to any rational evaluation (by the government) of the impacts of the development, will either be invalidated, require compensation, or both. And where local governments – openly or through “suggestive” review practices – demand things like parks, schools, sidewalks or other “contributions” in the rezoning or other process that are above, beyond or separate from established impact fees or exactions, those demands may subject the local government to claims – even (and perhaps especially) where the developer was successful in getting the development permit.

However, the majority opinion is clear: like a “taking of all economic use” under Lucas, a violation of the Nollan/Dolan/Koontz prohibition on unconstitutional conditions is a per se taking. Here’s the real warning and the potential problem for all sides: there is no meaningful difference between treating development approvals like a benefit that has to be “bought” (what’s in it for the community) and engaging in “out-and-out extortion.” Landowners are required to offset their legitimate impacts in order to develop – they are not required to provide benefits to the community.

My final point (at least today) is this: the parade of horribles in the SCOF opinion, the SCOTUS dissent, and the dissent of a large number of the land use commentators, all demonstrate an appalling lack of understanding of the day-to-day abuses that occur in the development process today, and how easily the Nollan/Dolan/Koontz test can be met by a government agency acting in good faith. Methods for fairly evaluating the impacts of development on public facilities/infrastructure and environmental resources are readily available today. The problems occur almost entirely from lack of planning and governmental over-reaching – and a culture of land use regulation that has become corrupted (in the general sense – but also leading to the specific) by the huge regulatory discretion enjoyed by local governments and the lack of effective judicial oversight on the use of that discretion.

On October 30, 2013, the Florida Supreme Court remanded the case to the Fifth DCA for further proceedings.

The Case Below: Florida Supreme Court Mangles a Difficult Takings Case.

I have condensed the background for this tangled, fifteen year plus odyssey through the administrative process and three trips for appellate review, as the complete story would take far too long to repeat. Koontz owns a 14.7 acre property that includes a significant proportion of wetlands and is also largely within a “Riparian Habitat Protection Zone of the Econlockhatchee River Hydrological Basin.” Koontz sought to fill 3.4 acres of wetlands for a project. The SJRWMD staff recommended approval with many conditions, one of which was that Koontz pay to perform offsite mitigation by replacing culverts in systems four and a half miles from the property or plug drainage canals seven miles away. The District never introduced any evidence that these actions would mitigate direct impacts created by the proposed development or that they were in any way proportionate to the impacts of the proposed development. Koontz refused to accept the conditions, and the District denied the permit. Koontz then sued under § 373.617, which provides a statutory process and remedies for claims that a permitting action would constitute a taking. In its first and second trips up and down the appellate chain to the Fifth DCA, the ripeness and other issues were addressed. On remand after the second appeal, the circuit court found the condition would create a taking, and the District chose to grant Koontz the permit (after receiving additional evidence that the jurisdictional wetlands on the property were significantly less extensive than originally thought). The circuit court then awarded Koontz $376,154 for a temporary taking by the District.

The 5^th DCA upheld the circuit court, holding the demand for off-site mitigation was an exaction under Nolan and Dolan. The Fifth rejected the District’s assertion that Nolan and Dolan did not apply to “cash” demands for mitigation, but only to conditions that require a grant or dedication of lands or easements. The dissent objected to lack of ripeness based on Koontz’s failure to litigate its validity in an administrative challenge, and also asserted that a takings claim is not available for mitigation conditions that do not involve dedications of land or easements.

The Florida Supreme Court overturned the Fifth DCA. It held that while Florida follows federal takings law, it was not clear under existing decisions that Nollan and Dolan apply to exactions that do not take the form of dedications of land or easements, and it would not “extend” those holdings to include such exactions. It also held takings claims are available “only where the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the property subject to the dedication imposed.” Justice Polston, joined by Justice Canady, concurred in the result, and would have held the entire issue was an attack on the propriety of the agency action and should have been subject to exhaustion by a challenge to the permit action under the APA.

The Court (and other courts that reached the same conclusion) was simply wrong in holding that the takings analysis does not reach “cash” mitigation. The “unconstitutional conditions” doctrine on which this branch of takings jurisprudence is based, prohibits the government from conditioning a license, permit or benefit on the relinquishment of a constitutional right or protected interest. The doctrine protects against regulatory over-reaching in any context - government employment (which is otherwise wholly discretionary), welfare (you can’t condition receipt), other forms of licenses (you can’t be required to swear allegiance to the United States in order to get a driver’s license), and the list goes on.

Furthermore, it is clear a regulation that requires a person to forego cash or its equivalent can be a taking. This was the issue in Webb’s Fabulous Pharmacy v. Beckworth, 101 S. Ct. 446 (1980), which held a statute allowing the clerk to keep interest on private funds deposited into the registry of the court violated the takings clause. Furthermore, (and directly on point) the Supreme Court characterized the statutory provision that awarded the interest to the clerk as an “exaction [that] is a forced contribution to general governmental revenues and is not reasonably related to the costs of using the courts.” It went on to note that the Fifth Amendment “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” The Supreme Court went on to state that “the county’s appropriation of the beneficial use of the fund is analogous to the appropriation of the use of private property in United States v. Causby. . . .”

In addition, this case is a minefield for a number of reasons. If the Court determined that the denial of a permit cannot cause a taking, why did it have to reach the other issue? Moreover, if the denial could not have such effect, why did the majority not agree with Justice Polston that the issue was subject to exhaustion and avoid making a constitutional ruling? The answer is very troubling: the Court wanted to assert that regulatory agencies can, should, and must impose such conditions on permits without fear of takings claims. The Court states:

It is both necessary and logical to limit land-use exactions doctrine to these narrow circumstances. Government agencies must have the authority and flexibility to independently evaluate permit applications and negotiate a permit award that will benefit a landowner without causing undue harm to the community of the environment. If a property owner is authorized to file an inverse condemnation claim on the basis of the exactions theory any time regulatory negotiations are not successful and a permit is denied, two undesirable outcomes inevitably ensure. First, the regulation of land use, deemed by the United States Supreme Court to be “peculiarly within the province of state and local legislative authorities,” would become prohibitively expensive. . . . Second, and as a result of the first consequence, agencies will opt simply to deny permits outright without discussion or negotiation rather than risk the crushing costs of litigation. Property owners will have no chance to amend their applications or discuss mitigation options because the regulatory entity will be unwilling to subject itself to potential liability. Land development in certain areas of Florida would come to a standstill. We decline to approve a rule of law that would place Florida land-use regulation in such an unduly restrictive position.

I cannot understand how the Court allowed itself to take this extreme position, one that cannot be justified by evidence or the law. The Supreme Court had previously held the public interest in the development process is protected by the “local regulations [or statutes], which must be uniformly administered.” Broward County v. G.B.V. Intern’l, Inc, 787 So. 2d 838 (Fla. 2001). Under Florida impact fee vs. tax, delegation of authority/rule adoption and similar requirements, most mitigation requirements are established by statute, rule or ordinance with respect to the extent and nature of required mitigation. Is the Court really saying that government entities are and must be free to demand unauthorized, illegal exactions in order to protect the public interest? The Court seemed frightened by a parade of horribles if it upheld the Fifth’s decision, and ignored the implications of overturning it in the way that it did: Under this decision, agencies and local governments will feel that the Florida Supreme Court has expressly authorized them to demand whatever exactions they want during negotiations. If they are smart, they won’t put those demands in writing. They will simply inform developers that if they don’t “voluntarily donate” to whatever the local issue de jour may be, they won’t get a permit approval, and they will be secure in the inability of the developer to challenge the resulting condition. It will be worse when “negotiating” with elected officials who may hear permit applications.

The Florida Supreme Court’s opinion could have an additional, unintended result that agencies and local governments may like less: frustrated landowners and developers will be able to take claims of illegal “cash” mitigation demands direct to federal court, because Florida has construed its takings clause to exclude a remedy.

Expectation of a Future Plan Amendment Does Not Create “Existing Use” or “Vested Rights” that Are Compensable under the Bert Harris Act: A. Town of Ponce Inlet v. Pacetta, LLC et al, 38 Fla. L. Weekly D1481a (Fla. 5th DCA, July 5, 2013).

2015-05-17T16:16:00.001-04:00

The Fifth District reversed a non-final order of the circuit court finding the Town of Ponce Inlet liable under the Bert Harris Act. While it is not discussed in the District Court opinion, the circuit court’s order demonstrated that the trial judge was incensed by the pattern of the facts: one set of Town officials had encouraged the plaintiff to assemble a set of parcels of waterfront land in order to come in with a comprehensive redevelopment plan and a comprehensive plan amendment to implement it; the project then attracted political opposition, and a later set of Town officials not only refused to amend the comprehensive plan to allow the project, but amended the charter and codes to prohibit future approvals.

The Fifth District, applying the earlier Halls’ River case and Florida law on vested rights, found that there was no basis under which the landowner could claim a “vested right” to the plan amendments necessary to allow the desired development, and therefore no right that was burdened by the Town’s action or inaction. Therefore, there was no basis for liability under the Bert Harris Act.

City Cannot Levy Special Assessments Against Special District Absent Express Authority to Levy or Pay: B. North Port Road and Drainage District v. West Village Improvement District, 82 So. 3d 69 (Fla. 2012)

2015-05-17T16:14:00.001-04:00

The City of North Port created a road improvement district to maintain and improve roads throughout the City. The Court ruled that the City lacked home rule power to levy the assessments against various parcels of vacant land owned by West Villages, a CDD with special legislative powers:

In this case, NPRDD’s special assessments on West Village’s property fall within the limitations on home rule delineated in section 166.021(3) because (1) West Villages is not authorized by law to pass through the special assessments to property assessed separately by West Villages, and (ii) NPRDD is prohibited by the constitution from compelling payment by the Florida Legislature. In other words, there is no way for West Villages to lawfully pay the assessments.

It is difficult to determine at this point whether the Court has created an exception that will swallow the more general rule that state agencies are liable to pay user fees and similar charges, unless specifically exempted by statute. What is also interesting is that the fight here had to start as a certiorari challenge to the City’s levy of the special assessments under the Chapter 170 process. This constrained West Village’s ability to argue that the assessments are patently unreasonable because West Villages (and the property within it) already maintains the roads within that area, and the funds would be used to improve roads in other areas of the City that would clearly not be used by, or benefit, the assessed parcels, or any lands within the West Villages.

County Could Impose Special Assessments for Recently Completed Projects Using Reassessment: A. Davis et al v. Marion County, 93 So. 3d 113 (Fla. 5th DCA 2012).

2015-05-17T16:12:00.003-04:00

The Fifth District upheld the trial court determination that Marion County could impose a special assessment on property specially benefited by recently completed roadway improvements within MSBUs, through the reassessment process.

While not stated in the opinion, it appears that the County established the MSBUs or the assessment methodologies after making the road improvements. Based on the opinion, it does not appear that the plaintiffs claimed there was no special benefit or that the benefits were unreasonably apportioned to the property. Instead, the argument was that the County could not assess because it did not have “jurisdiction” to assess when the improvements were made. The District Court rejected this argument based on earlier decisions allowing reassessment where benefitted property was not properly or fully assessed.

This decision could have significant impact and create new avenues for broad based funding for future improvements by confirming that local governments can recover from existing development the costs for improvements that benefit that development. In other words, local governments can use special assessments to recover “sunk” costs in existing improvements, allowing them to use that revenue to maintain, replace or expand other improvements or to repay general obligation bonds and free up other funds.

Circuit Court Correctly Applied Rules of Construction and Did Not Reweigh Evidence in Overturning Town Commission Approval of PUD Amendment: B. Town of Longboat Key et al v. Islandside Property Owners Coalition, LLC et al, 95 So. 3d 1037 (Fla. 2d DCA 2012.

2015-05-17T16:10:00.001-04:00

Disclaimer – I was the attorney for the Islandside respondents.

This case involves an extended and torturous set of proceedings to approve a major amendment to a PUD, originally approved in 1976, to allow redevelopment of a small commercial parcel and two recreational parcels with 300 multifamily and hotel units, a spa, restaurant and conference facilities. The Town amended the zoning code in the middle of the proceedings, and approved the amendment. When it became obvious that both the amendments and the approval would violate the comprehensive plan, it amended the comprehensive plan and further amended the zoning code to try to “save” the approval retroactively.

The approval was challenged in both declaratory and certiorari actions. In the certiorari action, the Circuit Court entered an order finding that the approval violated the clear and unambiguous language of zoning code in multiple ways, and that the Town applied an ambiguous provision in a way that was unreasonable and therefore illegal. In the introduction to the opinion, the Circuit Court noted comments by the Town’s Planning Director, that were adverse to the project.

The Town and the developer challenged the Circuit Court’s opinion to the Second District, claiming that (1) the Circuit Court reweighed the evidence, and (2) that the Circuit Court misapplied the law by failing to give deference to the Commission’s interpretation of the code and failing to construe the code broadly to favor the developer.

The District Court upheld the Circuit Court. The District Court rejected the reweighing claim, finding that the Circuit Court’s analysis focused with precision on the specific words in the Code. The District Court also found not merit in the Town’s claim that the Circuit Court decision was based on improper reweighing of the evidence. In particular, the District Court rejected the Town’s argument that the Circuit Court’s mere recitation of negative comments in the record as part of the background section of the opinion established that the circuit court reweighed the evidence. The District Court noted that “ the Town’s argument reaches too far and would encourage a judge to omit any meaningful background information in an order lest he or she be accused of impropriety. This hardly promotes judicial transparency, sound explanation and rational analysis.”

The District Court also found that, given the language of the Code and the Circuit Court’s analysis, it was not required to defer to the Town’s interpretation. It found that the Circuit Court had correctly focused on the language of the Code and applied dictionary definitions to interpret undefined terms.

The District Court rejected the Town’s claim that the previous approval of other development under the same language demonstrated that the language was ambiguous and, therefore, required deference to the Town’s interpretation:

The Town’s longstanding interpretation of its Code cannot tie the circuit court’s hands. To allow such a result would countenance a shifting sands approach to Code construction that would deny meaningful judicial review of local quasi-judicial decisions. The meaning of a code would remain in flux. Such an approach does not promote consistency in the application of law. As the wording of its laws binds a legislature, the Town is bound by the wording of its Code. This mounts a bulwark against the Town’s unfettered exercise of power.

This opinion (and practitioners should also review the circuit court opinion, which is available on Fla. L. Weekly Supp) provides ammunition to attorneys on both sides of an issue with a local government – the local zoning code (or comprehensive plan) is not “ambiguous” simply because the local government wants to reinterpret it in a particular case. Local governments are obligated to apply the plain meaning of their codes, as are the circuit courts. Failure to do so is a departure from the essential requirements of law.

County Commission Could Not Grant a Variance that Did Not Meet the Published Criteria: A. Wolk v. Bd. of County Commissioners of Seminole County et al, 38 Fla. L. Weekly D1474a (Fla. 5th DCA July 5, 2013).

2015-05-17T16:08:00.000-04:00

This case involved a variance from an ordinance that requires all fences or walls to be set back 25’ from the front/street lot line unless they are less than 3 feet tall or “see through.”

At issue were portions of a side fence consisting of 6’ stockade fencing. The applicants/owners originally wanted this fence to extend to 1’ from the road, but after seeing negative staff reports, they used permissible iron fencing along the side. However, it was not clear that the permitted fencing actually met the 25’ setback. The Board of Adjustment denied the application, finding that the requested variance did not meet the published criteria. The owners appealed to the County Commission under a “de novo” appeal provision. The Commission granted the variance, but also found it unnecessary despite the evidence that showed a 6’ stockade fence within 25’ of the front property line. The circuit court upheld this decision, finding and upholding the Commission on the basis that it could find that the variance was not necessary, and paradoxically therefore, could be granted.

The Fifth District reversed, finding that the Board of Adjustment applied the right law, and that the County Commission and circuit court did not. While the District Court did not say so, it clearly viewed the Commission’s action as an impermissible attempt to rewrite the zoning regulation through interpretation. The Fifth District stated:

We believe that the methodology utilized by the Board and approved by the circuit court of granting a variance in violation of the Code provisions yet concurrently concluding that the variance is not necessary is wrong, and its use needs to stop. Otherwise, others will be encouraged to employ the same or similar methods to work their will without regard to applicable laws and ordinances. Such methods not only disregard valid laws, they deprive others living in the neighborhood and surrounding areas of the valid application of ordinances that ensure the landscape of the neighborhood is kept in conformity with orderly growth and development.

The District Court recognized what the circuit court did not: that the County Commission was using the variance appeal process to simply reinterpret the code and apply it as it saw fit to individual cases. The Commission clearly thought that the established setback requirement was somehow unreasonable under the circumstances, so refused to enforce it – and refused to apply the published variance criteria. The District Court correctly found this process to be the application of the wrong law and a miscarriage of justice.

Development Order for Mine Did Not Violate Comprehensive Plan Where it Included Conditions for Other Permits that Would Require Compliance: A. W.A.R. Inc., v. Levy County, 93 So. 3d 1244 (Fla. 1st DCA 2012).

2015-05-17T16:06:00.004-04:00

W.A.R. challenged a development order for a lime rock mine as inconsistent with plan policies that protected “high quality” wetlands from development and required the protection of environmentally sensitive lands from mining operations. The development order at issue included a condition that prohibited mining excavation until all other regulatory permits had been granted, including an excavation and fill permit.

Both the circuit court and the district court agreed with the developer that this condition was sufficient to require compliance with the comprehensive plan, and that the development order was therefore consistent with the plan.

“Early” development orders such as rezonings, DRI development orders, or general site plans are frequently challenged for compliance with policies that can only be evaluated based on more specific plans and programs. This case demonstrates that these “general” development orders can be granted without doing all of the comprehensive studies that may be required prior to actual development, by including appropriate conditions requiring later development orders that will require compliance.

Refusal to Maintain Road Could Create Cause of Action for Taking - Jordan et. al. v. St. John’s County, 36 Fla. L. Weekly D1095 (Fla. 5th DCA 2011).

2015-05-17T16:05:00.000-04:00

The plaintiffs/appellants own lots that are accessible only by an “Old A1A,” which is a County road that runs along the beach. Old A1A was originally a state road; the state deeded the road to the County when it relocated US 1A further west. Given its location, the road was frequently damaged or washed out by storms and erosions. The County’s answer to the problem was to limit maintenance of the road and to adopt an ordinance imposing a temporary moratorium on residential building permits for lands served by the road. A group of landowners filed suit: (1) asking for a declaration that the County had the obligation to maintain the road, (2) requesting an injunction to require the County to maintain the road, (3) inverse condemnation for loss of access, and (4) for declaratory relief and inverse condemnation for the moratorium. The circuit court entered summary judgment for the County on all counts and the landowners appealed.

The District Court found that the circuit court erred in granting summary judgment to the County on the claims for declaratory relief and inverse condemnation that were based on the failure to maintain the road. The District Court agreed with the First District’s opinion in Ecological Development Inc. v. Walton County, 548 So.2d 1069 (Fla. 1^st DCA 1990), that a local government cannot accept ownership of a road and then refuse to repair or maintain it, but cannot be ordered to repair or maintain it in a specific manner. The District Court held that “the County must provide a reasonable level of maintenance that affords meaningful access, unless or until the County formally abandons the road.” The District Court went on to hold that “government inaction – in the face of an affirmative duty to act – can support a claim for inverse condemnation.” These issues were then remanded to the circuit court to determine: (1) whether the County had, de facto, abandoned the road, (2) whether the County’s maintenance of the road was reasonable, and (3) to determine damages if the County had failed to provide reasonable maintenance. The holding of this case should have been predictable and in my opinion it is lamentable that the case was necessary

Motion to Enforce Mandate may be a Way to Enforce a Writ of Certiorari -- Village of Palmetto Bay v. Palmer Trinity, 37 Fla. L. Weekly D1509 (Fla. 3d DCA, July 5, 2012)

2015-05-17T16:02:00.000-04:00

Really, I couldn’t make this stuff up if I wanted to. The School applied for a rezoning for 32 acres of land and an accompanying special exception and some development variances to expand from 600 students to 1400. After the Village denied the rezoning request, the circuit court denied cert without opinion. The Third District reversed, finding that the Village’s action was impermissible reverse spot zoning.

On remand, the School modified the conditions of the zoning request and the special exception application to reduce the number of students to 1150, with conditions to expand the enrollment over time, and eliminated the requested variances. The Village approved the rezoning and, at the same hearing, heard the special exception. The staff recommended approval of both, but also included a condition that the School record a 30 year covenant against any further requests for additional buildings, students and other relief. At the hearing, there was no testimony or evidence in support of the covenant condition, but the School’s attorney objected to it. There was evidence that the 1150 student enrollment was consistent with traffic and other levels of service. Neighbors and opponents testified for and against the application. When the testimony closed, the council began deliberating.

One of the council members made a motion to reduce the number of students to 900. There was debate, and the special exception resolution was passed, with the 900 student condition and the 30 year covenant requirement. The School challenged these conditions in a cert petition.

The circuit court, sitting in its appellate capacity on the cert petition, found that neither of the conditions was supported by competent substantial evidence. In addition, the circuit court found that the 30 year restrictive covenant was essentially illegal, as a moratorium and beyond the legitimate power of zoning. The circuit court quashed the conditions and remanded.

The Village then made plans to thwart the School and the circuit court. The School filed a motion to enforce the mandate (to require the Village to act again on the application) and the Village filed a motion for clarification claiming that the Commission could reconsider the entire application and approval because there was no severability clause in the adopting resolution. The Circuit Court responded to this Motion, instructing that the Village could not rely on the lack of a severability provision to consider the entire application. The School then filed an emergency motion with the circuit court to enforce the mandate, claiming the Village was planning to violate the circuit court’s mandate. The Village’s attorney filed a statement and a memo advising the Commission not to reopen the evidentiary portion of the hearing, and the circuit court denied the emergency relief. The Commission then held its hearing on remand and adopted an amended Resolution on the Special Exception. The Amended Resolution removed the 900 student cap, but it did not reinstate the 1150 student cap or mention any number of students; resulting in a resolution which kept the existing 600 student limit on the expanded campus, with numerous other conditions designed to accommodate the increase in students.

The School filed a motion to enforce the mandate (rather than a separate cert petition) which was heard by the circuit court with full appellate proceedings. The circuit court found the Village’s action in direct violation of the order (as clarified) and mandate. The circuit court rejected legalistic claims from the Village and intervening neighbors that the mandate only quashed the 900 student cap, but did not require the Village to approve the 1150 student application; and acclaim by the neighbors that the School “waived” its right to challenge the refusal to grant the 1150 student approval by challenging the 900 student cap condition. The circuit court’s order granted the motion to enforce the mandate and remanded to the Village “for proceedings in accordance with this Order and the Court’s Mandate of March 3, 2011.”

On first tier certiorari back to the 3d DCA, the Court upheld the circuit court's order to enforce its mandate.

Desire to Use Property for a Permitted Use not Valid Reason to Deny Rezoning - Palmer Trinity Private School, Inc. v. Village of Palmetto Bay, 31 So.3d 260 (Fla. 3d DA 2010)

2015-05-17T15:57:00.001-04:00

This one is required reading. In this “reverse spot zoning” decision, the Third DCA held that the Village could not deny a rezoning to a residential district that was consistent with the zoning of the surrounding lands, on the grounds that one of the permitted uses in the new district was a school use that the City knew the owner would request and that the neighbors objected to. The opinion cites some of the more recent “reverse spot zoning” opinions in the Third DCA, but also the following two key and undercited opinions regarding the valid and proper use of zoning: Porpoise Point P’ship v. St. Johns County, 470 So.2d 850 (Fla. 5^th DCA 1985) and Debes v. City of Key West, 690 So.3d 700 (Fla. 3d DCA 1997).

Scofflaw City Flaunts the Court’s Lack of Authority on Certiorari Review - Dougherty v City of Miami, 89 So.3d 963 (Fla. 3d DCA 2012)

2015-05-17T15:51:00.000-04:00

In its third crack at this case, the Third DCA granted second tier cert and quashed the circuit court’s decision for violating the law of the case and its earlier mandate. The issue in the original case dealt with the proper version of the code that should have been applied, and the extent of the authority of the City Commission on an administrative appeal. The circuit court originally held, and the District Court upheld, that under the terms of the City Code, the City Commission (a) could not hear a site plan appeal de novo, but instead had to apply the record below, and (b) had to apply the original code under which an application had been made.

On remand, the City Commission (via the City Attorney) decided that the Commission had the authority to re-open the hearing and hear new evidence and (believe it or not) to apply the new code – which it utilized to reduce the height of the development approval from 110 to 35 feet. The developer challenged the decision, the circuit court determined that the City Commission applied the wrong law, and the Third District upheld the circuit court.

On remand a second time, the City Commission again held a de novo hearing and again imposed the 35 foot height limit. When the developer challenged this “approval” by cert, the circuit court (inexplicably) denied relief with a PCA. The developer again went back to the District Court, which held that the circuit court departed from the essential requirements of law by failing to enforce the law of the case against the City Commission. Under the previous orders, the City could not conduct a de novo review, but had to apply appellate principles. Under the applicable codes, the Zoning Board decision to approve the application at the higher height was supported by competent substantial evidence and legal. The Commission’s application of a lower height was not only unauthorized, but inconsistent with the earlier decision and mandate.

Given the limited nature of the Court’s authority under certiorari review – then what? The District Court stated, “If we were able to direct the City Commission to affirm the Zoning Board’s determination, the result which would have occurred but for the City Commission’s erroneous de novo review almost eight years ago, we would do so.” Is there really any question that we need statutory provisions for judicial review of local quasi-judicial decisions?

Fourth DCA Inexplicably Holds that Plat Approval is Not A Development Order - Then Reverses Itself on Reconsideration

2011-08-14T13:37:00.000-04:00

In Graves v. City of Pompano Beach, the Fourth District Court first held that a plat approval was not a “development order” subject to challenge under § 163.3215. The opinion, which is inconsistent with other opinions and I believed applies an incorrect rule of statutory interpretation, holds that an application for a plat approval does not meet the definition of a development permit.

A “development permit” is defined in § 163.3164, to include “. . . any bulding permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local governing having the effect of permitting the development of land.” The court held because a plat does not (in and of itself) authorize “development” as that term is defined in the statute, it is not a development order.

Not only does this opinion misapply the “trailing comma” rule by applying the last modifier to the entire set, but it is also contrary to prior opinions and the clear intent of the statute. Under this case, the ONLY development permits that would be subject to challenge under 163.3215 would be earth moving permits, final plats (approving utilities, etc), and building permits. I cannot see how the the attorneys for the developer and the City could argue this interpretation with any clear professional conscience.

On rehearing, the Court entered a new opinion. The Court reversed its initial position, and found that the action was in fact a “development order” subject to challenge under § 163.3215. The opinion on rehearing found that “section 163.3215 does not suggest that a development order is one which grants development rights only in the advanced stages of the development process or to a shovel-ready project.” The dissent clung to the idea that a “plat approval” is not covered by the list of permit types in § 163.3164’s definition of development permit, and that it does not “permit the development of land.” The dissent ignored the fact that a “plat approval” is a “subdivision approval” by another name.

Fourth DCA overturns mining permit as inconsistent with Plan

2011-08-14T13:29:00.000-04:00

In 1000 Friends of Fla. v. Palm Beach County et al, the Fourth District adopted a strict interpretation of the term "only" in a plan policy and overturned the circuit court's decision that a mining permit was consistent with the policy.

The policy permits mining in a certain areas "only" for public road building, agricultural and water management purposes. While the FDOT was the primary intended customer, the development order did not restrict the sale of mined aggregate for the stated uses, but only required annual reporting of sales and customers. There was deposition and trial testimony that the company could not track the use to which sold aggregate was put. Based on that, the 4th District held that the permit was inconsistent with the plain language of the policy and also reaffirmed that reviewing courts do not have to give deference to local government interpretations of their plans.

I am sure that this is not the last we'll hear of this matter. These mines have significant strategic importance because they would produce high-quality aggregate needed for highway construction and the nearest alternative sources (in the Dade County lakes belt) may be shut down on federal permitting issues. The other major south Florida source is in Lee County - but there the County Commission is waging war on aggregate producers and trying to prevent any new aggregate mines through aggressive comp plan policies and land development regulations.

So, the policy will be rewritten and adopted without the restrictive provisions, we'll have another fight, and if the lack of permitting will affect major road construction, I predict we'll get legislation next year that preempts local comprehensive plans and regulations of strategic aggregate mining operations.

Engrossed verion of HB 7207

2011-05-17T13:48:00.002-04:00

Here's a link to the final, engrossed version of the Growth Managment Act bill that will go to the Governor.

More bills on their way to the Governor

2011-05-11T15:02:00.000-04:00

Ok, no analysis here, but I've identified a number of bills of interest (well, maybe) to land use practitioners that passed both houses and are on their way to the governor. I've tried to provide links to the PDF versions of the enrolled bills; they are from the Senate site (even for the House bills), which is a little easier to use.

In no particular order:

My favorite -- Bill that reenacts the burden/standard of proof in impact fee cases from the 2009 legislation.

Bill that clarifies (probably expands) the scope of the Ag exemption for stormwater management and wetland permitting. I think this is an outgrowth of the Duda Ranch case from last year.

Bill that limits building official's authority to require inspections of residential structures when a permit is requested for other structures on the same site.   There MUST be a horror story behind this one.

Bill addressing affordable housing agencies, trust funds AND GMA requirements in 163.3177.   The planning aspects seem benign; I can't tell about the rest.

Bill addressing substantive and procedural issues with the Florida Building Code.    This includes some things that look complicated with respect to the adoption of national codes and standards.

The "Vacation Rentals" Bill.   The preemption only applies to new regulations and frankly I don't know if the langauge actually prevents a local government from requiring vacation rentals to be in commercial zone districts.

Inside this Bill that requires e-filing by state attorneys and public defenders is a new requirement for attorneys to file all petitions and pleading with DOAH electronically

I'm sure that there are other fun bills that I've missed - let me know your favorites.

Best
Robert

Ah, DCA, we hardly knew ye

2011-05-09T11:15:00.000-04:00

Here's a link to the bill that will transfer DCA's community planning functions (among others) to the "Department of Economic Opportunity." The Florida Building Commission goes to DPBR. Emergency Management (and the scary powers of FEMA, etc.) go to the Office of the Governor. There is a "transition period" until October 1 to accomplish the mass transfer of functions (and, presumably, to spend all the supposedly saved tax funds on new business cards and letterhead).

I can't even bring myself to comment. Everybody pray that we don't get a major hurricane this year.

Major amendments to the Growth Management Act

2011-05-09T10:49:00.001-04:00

Wow. Major amendments to the Growth Management Act were apparently adopted by the Legislature on Friday, at the tail end of the session. It's over 300 pages, so analysis will have to wait.

Here's a link to the bill, (HB 7207).
Behind the scenes, there was major confusion on Thursday. The House had adopted a version of the bill two weeks ago (HB 7129). It was in a Senate Committee, along with a complete amendment from Bennett that (apparently) represented the consensus of what should pass. However, Bennett's own bill was also waiting for action by the entire body, with a separate set of amendments that were similar but not the same. On Thursday, the Senate took up Bennett's bill, passed the amendments and approved the amended bill. Someone then realized that the Senate had in effect passed the wrong bill.

On Friday, a conference committed report on a different bill was brought forward which had all of the agreed on language (that was also sitting in the Senate committee as the amendment to HB 7129). The House passed, it, and then the Senate passed it as well.

Given the other fights between the House and Senate on Friday, this demonstrates a significant amount of consensus.

Irony - Legislature Passes Unnecessary "Savings Bill"

2011-05-08T12:56:00.001-04:00

On April 27, the Governor signed Chapter 2011-14, effective immediately. That bill was almost entirely directed at saving the 2009 amendments to the GMA, which had been invalidated for imposing a mandate to amend plans on local governments. Here's a link to the Chapter law. On May 2d, the 1st DCA overturned the circuit court decision invalidating the 2009 Legislation - here's the link. The court's ruling was based on its determination that the Plaintiffs named the wrong defendants and failed to name the correct defendant - the state land planning agency. Irony, indeed.

I believe that any issues from the 2009 legislation not dealt with in the "savings bill" have been addressed in the later growth management act amendments.

Legislation 1 - Bert Harris Act amendments

2011-05-08T12:41:00.000-04:00

Some (relatively) minor amendments to the Bert Harris were passed. Clarifies the definition (structurally) of an "existing use," shortens the time for the government to provide the "ripeness"/settlement alternatives and clarifies language about that provision, clarifies the waiver of soveriegn immunity and - most importantly- mostly undoes the Hall's River case holdings on the "application" of a statute, rule or ordinance.

Attached is a link to the bill text that went through the House and Senate and was enrolled by the House. I believe that the Senate's final version was the House's version and the bill will go to the Governor.

1st DCA - ALJ/Admin Comm'n Misapplied Law and Evidence in Finidng Small Scall Amendment "Not In Compliance"

2011-01-23T20:31:00.000-05:00

In Katherine's Bay, LLC v. Fagan and Citrus County, the 1st DCA overturned the Administration Commission Final Order, adopting a Recommended Order issued by a DOAH ALJ, that found a small-scale plan amendment permitting an RV park to be "not in compliance."

The Court found that the ALJ violated the applicable rules of statutory interpretation (that the specific governs over the general) by finding that the amendment violated a general coastal/environmental policy when a more specific policy addressed the location of RV parks. Again, we see the 1st DCA limiting the strict scrutiny language of Machado, which states the over broad position that every development order must comply strictly with each and every provision of the comprehensive plan.

The Court also found that the ALJ make a determination that the amendment was not "compatible" without competent substantial evidence. This is another important aspect of the case: the Court rejected the ALJ's acceptance of the lay opinion of the challengers that a mobile home park would have adverse impacts on the area including light pollution, traffic, and negative impact on housing values. The Court is, in effect, setting forth fairly stringent requirements for evidence regarding compatibility that requires expert testimony on most aspects commonly used to claim that uses are not compatible. The Court specifically rejected any analysis that the RV use was "inherently" incompatible with existing residential uses simply because it was different and more intense.

Important reading for future cases.

1st DCA - "Reasonableness" Must Be Used When Interpreting Plan Provisions

2011-01-23T12:10:00.000-05:00

In Arbor Properties et al v Lake Jackson Protection Alliance et al, the 1st DCA overturned the trial court's determination that a PUD approval vioated certain watershed policies of the Leon County Plan.

This was a classic problem of "strict scrutiny" rules under Machado v. Musgrove creating an absurd result. The Leon County Plan Conservation Element includes special provisions that apply to developments in the Lake Jackson watershed, including on that required the land development regulations to have special designations for the watershed that would effectively preclude residential development. However, one of the Future Land Use policies indicates that the designation requirements are not intended to apply in "closed sub-basins" - basins that don't discharge water into the Lake, even though they are within the general Lake Jackson drainage basin.

Opponents challenged and convinced the trial judge that because the FLU policy did not specify that it was intended to create an exclusion to the specific Conservation Element policy (it was simply included a a sub-policy below the general policy), it didn't have that legal effect.

The 1st DCA ruled that the entire set of policies had to be read together and that in that light, the only reasonable interpretation was that the FLU policy was intended to create an exception to the Conservation Element policy, and was consistent with its intent. Supporting this analysis, the Court said:

The Florida Legislature has established that in reviewing consistency, a court may consider the "reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan, or element or elements thereof, in relation to the governmental action or development regulation under consideration." § 163.3194(4)(a), Fla. Stat.

Here, the trial court’s order incorrectly reviewed the development order and the Plan by neglecting to consider the “reasonableness of the comprehensive plan, or element or elements thereof.” By reviewing the applicable provisions of the Plan as a whole, the most reasonable and holistic interpretation, based on both the text and the synthesis of the document, we have no doubt that the development order is consistent with the Plan. This is necessarily so, because when read in pari materia, it is clear that the Plan and its elements provide that within certain Zones that actually discharge rainwater runoff into Lake Jackson, Leon County has established much more stringent development limitations for one primary purpose: to protect Lake Jackson from polluted rainwater runoff

It is hard to underestimate the importance of this decision to landowners/developers. For years, neighbors and local government attorneys have used the "each and every element" language in Machado to argue that development orders must be consistent with unreasonable, atomic analyses of particular plan provisions - which can easily be taken out of context. Every land use lawyer in Florida knows the result: every complex plan in the state has provisions that can be used to defeat ANY development order at any time through an unreasoning application of the consistency doctrine and vague and subjective plan provisions. This opinion is a strong stake in the ground that "strict scrutiny" must be balanced by a reasonable application and result.

The Court went on to reject an argument that this interpretation would create other "absurd" results in applying the Plan - citing not only the speculative nature of those claims, but also stating that the "absurdity" doctrine in statutory construction should be applied restrively.

Back in Blog

2011-01-15T11:29:00.002-05:00

Hi all -

After a long (too long) hiatus, I'm back blogging. I'm pretty much caught up through 2009 plus 3d DCA cases (some pretty important) for 2010. I'll work on getting some of the more important land use cases from other Districts up in the next few weeks.

Thanks to everyone who encouraged (well, in some cases practically threatened) me to get the blog going again.

Robert

AMAZING 3d DCA Upholds Circuit Order Requiring Approval of Plan Amendment and Zoning

2011-01-15T11:22:00.002-05:00

In the frankly astounding case of Village of Pinecrest v. GREC Pinecrest, the 3d DCA upheld a lower court decision that reversed the Village's denial of a plan amendment, rezoning and site plan approval. The amendment and development orders would have permitted an 18 unit housing project.

In discovery, the Village admitted that the Plan Amendment - and the project - were consistent with the comprehensive plan. Apparently the project required a future land use map amendment that brought the map into consistency with other policies, and the project was totally consistent with the other policies an map.

The Village, in effect, claimed that it had complete legislative discretion to deny the FLUM amendment and therefore the development orders even if they were otherwise consistent with the Plan. The circuit court disagreed and the 3d DCA upheld the circuit court.

This is a MUST READ. The facts may end up unique, but the case is the first case that establishes a critical proposition: that local governments may be obligated to adopt amendments and development orders that are consistent with their Plans.