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Land Use and Local Government Law and Litigation

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Filtering by Tag: 163.3215

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

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.

5th Upholds Special Use - But It's Very Confusing

In Keene v. Zoning Bd. of Adjustment the 5th District upheld a determination by the circuit court that a semi-annual riding event with dozens of riders was permitted in the Rural Residential area.

Interesting issue one: no one mentions the deference to agency construction rule, or if it applies - more interesting because of issue number two.

Interesting issue two: this is framed as an appeal from a declaratory action in front of the circuit court, which could only be a 163.3215 challenge, because any other challenge would be a cert petition. However, the majority opinion does not frame the question as whether the action was consistent with the comprehensive plan, but whether the use was consistent with uses permitted as special uses under the Land Development Code. Something's wrong, and I suspect that the dissent has the right analysis - which focuses on the comprehensive plan uses.

So we have a case where it appears from the appellate decision that the causes of action, the standards of review, and the standard being reviewed against (the LDC vs the plan) are a total mishmash. Why? Broken record time: the absence of a statute that would provide a consistent form and method of judicial review of local government decisions, one that also states that the review is appellate, what the standard of appellate review is, what the appellate remedies are, and what the standards for decisions are.

Fifth DCA Reduces Standing in 163.3215 Challenges to a Pleading Exercise

In Save the Homosassa River Aliance v. Citrus County, the 5th District dramatically expanded the scope of standing under section 163.3215, essentially eliminating any meaningful limitation from the language that requires a plaintiff to claim and demonstrate impacts to an interest protected by the plan that exceeds that of the general public.

The challenge involved a rezoning that increased density, from 15 to 87 units.

In reviewing the cited allegations of the complaint, at least one of the plaintiffs probably alleged sufficient standing based on potential traffic impacts to a hurricane evacuation route. But the rest of the allegations are just junk - claims that the plaintiffs enjoyed canoeing on the river that are not then supported by any claim of particular plan policies that protect those interests and that would be violated by the development order.

In order to gut the definition of "aggrieved or adversely affected" in the statute, the court sets up a straw dog of a "unique" interest or impact - which is clearly not required, and then allows "any" impact to "any" interest:

The allegations show that the Plaintiffs all have a direct and demonstrated
concern for the protection of the interests furthered by the comprehensive
plan that would be adversely affected by allowing a development that violates the plan.
An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a
"unique harm" limitation onto the statute would make it impossible in most
cases to establish standing and would leave counties free to ignore the plan
because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right.

But for the most part, the allegation in the complaint cited by the Court didn't claim that the development would harm the protected interests that were claimed in any meaningful way. The court's attempts to distinguish the earlier Keyser and Putnam County Envt'l Council opinions are simply unconvincing.

The REAL problem is that the courts now permit "strict scrutiny" of the plan that doesn't discriminate between the broad language of goals or objectives, and many totally subjective policies. There is no way for ANY development to be consistent with most plans if every part of the plan is read expansively.

Read the dissent to this case. What's coming is an explosion of cases that will essentially halt any development that anyone doesn't like for as long as the NIMBY-neighbors can afford to litigate.

Failure to Appear or Raise Issues at QJ Hearing Does not Preclude Standing under 163.3215

In Dunlop v. Orange County, the 5th DCA held that a aggreived neighbor is not precluded by waiver from demonstrating standing and raising issues in a de novo proceeding under 163.3215 for failure to do so in the quasi-judicial proceeding before the local agency.

Yeah, it's obvious: if you have a de novo hearing, all of the issues are de novo. Didn't stop Orange County from claiming waiver and preclusion to the apparently clueless circuit court.

Just another example that the circuit courts (improperly, in way too many cases) trust the positions of local government attorneys over their private counterparts, whether they are representing developers or neighbors. The result: effectively unreviewable discretion. De novo proceedings under 163.3215 are one of the exceptions -- too bad the courts refuse to give effect to the 2002 amendments and allow landowners to challenge improper interpretations of the plan to deny development orders.

madness in Fort Lauderdale – Collateral Estoppel, Consistency and other Suits - Stranahan II (but the first decided)

Stranahan House, Inc., et al v. City of Ft. Lauderdale, 32 Fla. L. Weekly D2591a (Fla. 4th DCA October 31, 2007).

Warning: you may want to read Stranahan I, which perversely was released 2 weeks later, before trying to make sense of this.

In this case, the Court allows a group representing a neighboring property to go forward with a “consistency challenge” under § 163.3215 to the approval of an amended site plan approved by the City of Ft. Lauderdale. The critical issue in this challenge involves policies regarding historic preservation. The building involved was to be built on lands adjacent to the historic Stranahan House that had been the subject of a failed attempt by the City to purchase for “park purposes” (read—stop development) with Stranahan’s supporters committing funds.
As will be seen below, the effort to buy the land not only failed, but resulted in other litigation and settlements between the developer and the City. When, pursuant to the settlement, the City approved the site plan, the citizens/Stranahan House sued on several fronts, including the consistency challenge.

The City argued, and the circuit court agreed, that the core issues of consistency had been argued previously in the earlier, settled suit. The Fourth District rejected this, in part because the pleadings in the earlier case were not part of the record. [BIG HINT – it appears the same judge heard multiple suits, and the parties argued the merits of the earlier suit to the judge without putting them into the record by notice – if you have to argue collateral estoppel or other similar issues, put the other pleadings into the record]

The circuit court also found that Stranahan House was precluded from litigating this issue against the City because the agreement it had with the City in the attempt to buy/condemn the land, authorized the City to act for it. The City argued that the settlement was an outgrowth of that action and that, just as the City was bound, the plaintiffs were bound by the City’s action. The Fourth District rejected this theory of agency under the terms of the agreement, found that the plaintiffs had standing under the statute, and let it proceed.

HOWEVER – given that the plaintiffs had unsuccessfully argued earlier that any use of the property violated the historic preservation policies of the plan (and that the site was outside the historic district protected by the policies), it seems unlikely that they will prevail when the plan goes back to the judge. Their real efforts were to kill the site plan as illegal, which was rejected in the second case.

Once again, No Deference to Local Interpretation of Comprehensive Plans

In Saadeh v. City of Jacksonville, the First District held (again) that a local government’s interpretation of the comprehensive plan – or other ordinances – gets no deference when the court can interpret the plain meaning. The case involves a “second go-round” after the District had rejected an earlier interpretation that allowed a private rowing club in a residential area. The city had amended the zoning regulations, rezoned the property to a PUD and included provisions intended to permit the rowing club to be treated as a park or recreational use.
First, the court reiterated its earlier opinion that:
The test in reviewing a challenge to a zoning action on grounds that a proposed
project is inconsistent with the comprehensive land use plan is whether the
zoning authority's determination that a proposed development conforms to each
element and the objectives of the land use plan is supported by competent and
substantial evidence. The traditional and non-deferential standard of strict
judicial scrutiny applies.
Dixon v. City of Jacksonville, 774 So.2d 763, 764 (Fla. 1st DCA
2000)
.

The court then goes on to apply this rule to disallows Jacksonville’s legislative attempt to make exactly the rowing club a park use, holding in effect that ownership, not use, controls whether the City can permit this use in a residential district.

The Respondents urge that our prior holding in Saadeh does not control this
case, because the City of Jacksonville has since defined “parks” to include a
much broader range of facilities and uses. Indeed, they contend that the new
definition makes no distinction between public and private ownership and thus,
they suggest, is intended to incorporate both. We disagree. While, at the time
of our decision in Saadeh, the Jacksonville Ordinance Code did not include a
definition of “park,” the Code now defines that term as “an area designed to
include a combination of passive recreation ... as well as active recreation ...
attracting visitors from the community and beyond a one-mile radius.” See
Jacksonville Ordinance Code, § 656.1601. Nonetheless, this new definition is
substantially the same as the plain and ordinary meaning of the word “park” as we previously defined it, that is, “an area used for recreation and amusement.” Furthermore, the Ordinance Code also continues to separately define a “private club” as “buildings or facilities owned or operated by a corporation, association, or persons for a social, educational, or recreational purpose.” See Jacksonville Ordinance Code, § 656.1601. The Stanton Foundation falls squarely
within this definition. Thus, despite the newly amended definition of the term “park,” we continue to agree with our previous ruling, that Stanton's interpretation of the Ordinance Code and its definitions “is so broad as to render the referenced term ‘parks' meaningless
.” Saadeh, 912 So.2d at 31. We conclude that Stanton's use of the property is as a private club, rather than as a public park.
Turning to the Comprehensive Plan, the Stanton Foundation's property is designated LDR, and as such is intended as a primarily residential area, permitting housing developments and single family residences in a gross density range of up to seven dwelling units per acre. See Jacksonville Ordinance Code, § 656.305. Pursuant to, and consistent with, the Comprehensive Plan, Jacksonville's Land Use Regulations permit a number of primary uses, as well as “uses by exception” within the LDR category. Notably, the LDR category does not permit the operation of a private club, either as primary use or as a use by exception. In contrast, a private club is expressly included as a permissible use by exception within the Medium and High Density Residential (MDR, HDR) land use categories. See Jacksonville
Ordinance Code, § 656.306(A)(II)(c)(9); § 656.307(A)(II)(c)(6).
This court has previously rejected attempts to rezone property where the intended use is not permitted in the Comprehensive Plan, either specifically or by reasonable implication. (emphasis added)
The court therefore held that the neighbors were entitled to certiorari and quashal
of the circuit court’s decision and of the City’s grant of the PUD.


Critical points: First, A de novo action under s. 163.3215 (2) should have been the sole means by which a consistency challenge was brought. Why is there no discussion? Has the First District turned consistency questions that turn solely on the interpretation of the plan and zoning regulations into an “essential requirements of law” issue that is not the determination of whether the development order is consistent with the plan? Second, is non-deferential review only available to review the approval of a development order? Is it not available to review the denial of a development order if the developer alleges that the local government’s interpretation of the plan or the zoning ordinance are not justified?

3d DCA - 30 Days for 163.3215 Challenge Runs from Filing with Clerk

In 5250 v. Stebbins, here's the link, the 3d DCA held that the time for filing a challenge under s. 163.3215, like a cert appeal, runs from the filing of the order with the clerk. As the court noted:
Section 163.3215(3) provides that the de novo action "must be filed no later
than 30 days following rendition of a development order." We conclude, in this
case of first impression, that the triggering event for "rendition" is when the
City Clerk entered the development order, not when the mayor signed the order.

The languge was changed in 2002 to include the "rendition" term, the court noted the legislative history, which included staff analysis to indicate that this was intended to make the time frame concurrent with the applicable rules of court. The appellate rules define rendition as occuring when the order is filed with the clerk to the tribunal.

A decision that simplifies life for all of us. Now, the only filing date that runs from the date of the action, rather than the date of the rendition, is the 30 days to file a challenge to a small scale plan amendment.

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