Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Filtering by Tag: charter

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).

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 Second DCA and Preemption – Home Rule over Legislative Intent

Sec. of State Kurt Browning, et. al. v. Muntz, et. al., 32 Fla. L. Weekly D2573a (Fla. 2d DCA October 31, 2007).

The Second DCA determined that amendments to the Sarasota County Charter that included provisions for the auditing and counting of ballots, were preempted by the Florida Election Code. Right enough. What’s distressing is how long it took the Court to get there, and the arguments raised by the dissent.

The Florida Constitution directs the Legislature regulate elections, and this has been held mandatory. The purpose of the Florida Election Code (Chapters 97 through 106, Florida Statutes) is to “obtain and maintain uniformity in the interpretation and implementation of the election laws.”

I don’t know how much more the Legislature ought to have to say in order to preempt an area from local regulation. If the Legislature intends uniform laws, then local regulation on the same subject is clearly inconsistent with that intent. But the Second District several years ago, in Phantom of Clearwater v. Pinellas County, allowed local regulation in an area where the Legislature had dictated uniform laws, finding that such an intent was insufficient to create express preemption. In this case, the Court required pages of analysis to determine that the Election Code was such a “pervasive” regulation that the Court would apply doctrines of “implied preemption” to hold the charter amendment inconsistent with state law. Moreover, the dissent complains that under Phantom, the Court should have upheld the charter amendment.

The dissent may be right, and it indicates the dismal state of preemption law in Florida, that gives more credence to home rule than to reasonable interpretation of legislative intent to preempt it. The Legislature should not have to use “magic words” to preempt local regulation. The Legsilature is the supreme law and the courts should pay more heed to legislative intent than murky concepts of home rule. The courts should go back to the old doctrines that local governments may not proscribe what the state expressly permits and that when the Legislature provides a process for taking action, that process must be followed and respected.
Either that, or the Legislature should adopt broad language preempting wholesale areas of regulation to itself and limiting the scope of local home rule. Touche’.

NOTE - This case has been accepted for review by the Florida Supreme Court. Briefs are due on December 26? and oral argument will be held in May. Wish I'd had time to request permission to file an amicus brief.

Second District Affirms Fourth on Annexation in Charter Counties

In City of Largo et al v. Pinellas County, the Second District held that a provision in the county charter could not authorize a county ordinance governing voluntary (or other) annexation, citing the Wellington case issued by the Fourth DCA last year. To comply with the applicable statute, any alteration to the annexation provisions must be included in, not merely authorized by, the charter.

Read the opinion to get a feel for the kind of turf wars that are springing up all over the statee over annexation issues. I think there have been more reported cases involving counties suing to stop city annexations in the last four years than in the previous twenty, not to mention all the variations on county charter amendments intended to restrict municipal growth.

Charter Control over Annexation- Provisions Must Be in Charter Itself

In Village of Wellington, et al, v Palm Beach County, here's the opinion, the 4th DCA upheld a circuit court's findings on the powers of charter counties to control and limit annexation. There's a good discussion of the interaction of the various constitutional and statutory provisions, but the bottom line is that the Charter provision itself must provide the actual annexation rules if they are to supersede the statutory provisions or municipal charters. The Charter can't just empower the County Commission to adopt later ordinances to govern annexation.

2d DCA OK's Local Referenda for Plan Amendments (a win for blind populism vs. good planning)

In a decision that is REALLY BAD for good planning, and which didn't even address the 5th DCA's recent comment on the issue, the 2d DCA issued this opinion in Citizens for Responsible Growth v. City of St Pete Beach, overturning the trial judge's determination that imposing a referendum requirement for plan amendments conflicted with the statutory process set forth in Chapter 163.

OK, major disclosure: I'm directly involved in parallel litigation against CRG on the parallel issue of whether they can use a referendum process already in the city charter to repeal a plan amendment, and I've made the arguments rejected by the 2d DCA to the same trial judge.

Let's start with what the court got right. It found a) that the city had standing to bring up the constitutionality of proposed charter amendments, and b) that the trial court had jurisdiction to consider them prior to the election. Despite years of having this put to bed, the CRG had argued that the city couldn't fight this issue, and that it had to wait until after the election anyway.

The critical issues were whether the amendment procedures provided in the statute preempted the imposition of additional local requirements. In particular, the growth managment act has a "sole process" provision, and the question was whether it really means what it says. The counter was that there is a prohibition in the chapter against using referenda for plan amendments that affect 5 or fewer parcels, or for development orders. The court interpreted this as implicitly authorizing a procedure for using referenda for amendments that involve more than 5 parcels, and that referenda therefore were somehow authorized as part of the statutory process.

This is really, really weak logic when you think about it, especially in light of the purpose and needs of the statute and planning. The court ignored a slew of absolute real world problems that were also ignored by the Florida Supreme Court in approving the Hometown Demogagy amendment.

First, local governments are REQUIRED to update their plans annually for capital improvements and other issues. Roads, sewer lines, and other public facilities cannot be built if they are are not consistent with an adopted plan. Therefore, requiring all general plan amendments to be approved by referendum not only risks major disruption, it interferes with multiple functions of governments, including both executive and legislative functions.

Second, decisions (pro or con) on plan amendments must be based on data and analysis under the statute, not just on raw political preference. That is, while plan amendments are legislative, they also are constrained by actual (as opposed to assumed) facts and data. The amendment process completely, utterly and totally destroys that critical basis for the validity of the plan and planning in general. Instead, it renders the plan nothing more than a popularity forum to to allow existing residents to convert public property (like available capacity in a public street) to their private use.

The court simply didn't consider the second issue and got the first issue dead wrong. It believed the nonsensical position of the CRG that the Administration Commission could sanction a local government for not adopting plans and that the regional planning council could adopt any missing elements. Well, folks, that just BS, a blatent misrepresentation of the law by the CRG, and hopefully will be fixed on reconsideration. Those parts of the statute only applied to the original plan adoptions under the statute, NOT to amendments to plans that already had been found in compliance.

So it all comes down to public plebescites on land use. Let's be clear: if planning is by referenda, there is no planning. There's just saying no to change, regardless of the needs of the larger community and whatever "rights" might be left to landowners.

And some will say this is really tacky (if not inflammatory) but the reason we have a constitution and limits on direct democracy is that voting or democratic processes don't generally promote democracy: remember always that Hitler was elected democratically.

Well, there are some other fights on this issues still to come. For example, article i, section 5 of the constitution requires that referenda be as "provided by law." That means STATE LAW, not a local charter. Well, there's no explicit provision for conducting referenda on plan amendments that you can find anywhere in the Florida Statutes, and to my knowledge, there's no special act authorizing St Pete Beach to have such referenda.

So, anyway, the forces of demogagy, bad planning, and the conversion of public infrastructure to the private use of existing residents won this time. Too bad -- at some point they're just asking for the whole process to be gutted or legislatively directed to sidestep all this fascistic psuedo-democracy.

Initiative is Not Available to Adopt/Amend LDRs! and Charter County Plans Can Supercede City's

In Seminole County v. City of Winter Springs, here's the opinion, the 5th DCA held that a county charter provision that over-rode the City's attempts to plan in annexed areas did not violate the "single subject" rule.

Here's what's interesting: the argument that won below was that the provision in the charter that held that the boundary could be adjusted only by an ordinance adopted by the commission "over rode" the charter's initiative provision -- which allows adoption of ordinances by the electorate. This "extra effect" was held by the trial court to violate the single subject.

Here's what's important: the Court held that Chapter 163's provisions for the adoption of land development regulations by the "local governing board" and definition of "local governing board" as the county commission means that the use of initiative to amend or adopt land development regulations is inconsistent with state law, and therefore prohibited!!!!!

So - a TON of local governments (especially coastal cities) have adopted restrictive charter amendments that required referenda for plan amendments or rezonings that increase density or intensity. Under the 5th's rationale, these are now illegal and unenforceable.

A blow for better planning and land use regulation and a swat at knee-jerk psuedo-democracy.

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