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.

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

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. 

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

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.

1st DCA Confirms that Local Governments Must Issue Development Orders for Development as Defined Locally and Under Sec. 380.04, Fla. Stat., for Evalua

Johnson v. Gulf County, 26 So.3d 33, 34 Fla. L. Weekly D2625b (Fla. 1st DCA December 22, 2009)

In Johnson v. Gulf County, the 1^st DCA (on this case’s second trip from the circuit court to the 1^st DCA), held that (1) a landowner was required to obtain a development order to fill certain lands alleged to be wetlands and to subdivide his property into 5 lots, so that (2) the complaining neighbors could bring a §163.3215 challenge against the action.

This action started in 2006. A landowner got a determination from FDEP that his property did not include jurisdicational wetlands of the state. He then began to fill them. He also used provisions of the Gulf County land development code to split one parcel and rearrange parcel boundaries so as to create five lots from what had previously been three, all without going through the County’s subdivision process.

The neighbors complained that the filling violated the comprehensive plan, and also tried to bring claims under § 163.3215. The County claimed there was no need for any development permit or order (under the County code) and therefore nothing to challenge. The neighbors also claimed that the subdivision of the property violated the local ordinance.

In the first go-round, the circuit court dismissed the neighbors’ claims without leave to amend. The 1^st DCA reversed, stating that the neighbors had to be given the chance to amend the complaint, but stating nothing about the substance of the matter. On remand, the circuit court dismissed the amended complaint.

The circuit court held that the filling of the wetlands (assuming they were) did not materially alter the use, density or intensity of use of the land. It found that no development order was necessary and that even if one was necessary, the filling of non-jurisdictional wetlands was not inconsistent with the plan. It also found that the “lot split/reconfigure” process used did not require full subdivision approval.

The 1^st DCA reversed. It looked at the County’s plan, which included requirements that wetlands get certain protections, and determined that nothing in that plan (or the land development code) stated an FDEP determination that a wetland is not jurisdictional means that it is outside the County’s jurisdiction. It also held (and this is important to people in a lot of areas) that a minor replat process is also a development order

The 1^st DCA properly found that, under the definition of development in the Gulf County LDC (which is consistent with §380.04’s definition), clearing and filling land constitutes development. The Court held – and this is an obvious step (see Das v. Osceola County) – that the County had to issue a development order for a landowner to engage in development. The Court also found unambiguous language in the plan that appears to limit development within 50 feet of wetlands, whether or not they are jurisdictional, and that certain language in the LDC could not limit the scope and reach of the plan. The Court ordered the landowners to comply with the requirements of the plan and code, ordered the County issue a development order for the wetland filling, and ordered the circuit court to conduct a de novo hearing on whether that development order is consistent with the plan.

The Court then did (again, appropriately) a de novo review of the provisions of the County’s subdivision regulations and found that the splitting/reconfiguring done here required a full subdivision.

Fifth DCA Reverses Itself, Circuit Court and Board of Adjustment to Hold that Special Use Permit was Inconsistent with Comprhensive Plan

Keene v. Zoning Bd. of Adjustment, et. al., 22 S.3d 665, 34 Fla. L. Weekly D2231a (Fla. 5th DCA Oct. 30, 2009)

The Zoning Board issued a Special Use Permit to conduct a horseback riding school and hold endurance trail ride competitions on land designated “Rural Residential” by Putnam County. The circuit court upheld the permit. In Keene v. Zoning Bd. of Adjustment, the 5^th DCA on rehearing, reversed the circuit court.

While the action is described as one for “declaratory relief,” review of the footnotes and the dissent clarifies that it was brought pursuant to §163.3215, Fla. Stat. The majority finds that the SUP was a development order (it permitted a material alteration in the use of land, if one parses §380.04), subject to challenge on the basis that the activity was inconsistent with the comprehensive plan. The majority then looks to language used by the applicant and the County to describe the use as “commercial: agriculture related” and comparies it to the Plan. The 5^th DCA concludes the Plan does not permit such uses in the “Rural Residential” land use category, but does permit “resource-based recreational uses.” The Court reviewed the record and determined that, based on how the Plan itself and the LDC are organized and interpreted, the uses clearly fall into the commercial realm and are not permitted.

The majority’s approach is consistent with cases like Dixon v. City of Jacksonville, Saddeh v. City of Jacksonville, and Bay County v. Harrison, holding (a) courts review the provisions of comprehensive plans de novo and do not give deference to local interpretation, and (b) plans are interpreted so that land uses not specifically permitted (or permitted by direct implication) within a land use category are presumed to be prohibited, particularly when they are permitted in other categories.

The dissent by Judge Griffin questions whether the SUP was a development order subject to challenge under § 163.3215. The dissent’s main focus and claim is that the majority essentially overanalyses the issue and ignores the provision of the Rural Residential category that permits “Activity and Resource Based recreational uses.” In her review of the record, Judge Griffin focused on the findings of the Zoning Board and the circuit court judges that tied the “boarding and riding school uses” more to recreational uses than commercial uses, and noted that commercial uses that are recreation-oriented were permitted. Judge Griffin also questioned the analytic approach to consistency. It appears she would hold in order to find a development order inconsistent with a plan, there must be a specific provision that is violated. I think this holds true with policies that involve development standards (prescribing wetland buffers, for example), but is much more problematic when it involves the uses permitted in particular land use categories.

This case is very interesting and important because even though they come to different conclusions, both the majority opinion and the dissent are doing exactly what the courts should be doing: digging into the meaning of the plan, the LDCs and the record to determine whether the local government is or is not acting within the boundaries of the Plan. By passing §163.3215, the Legislature instructed the courts to “act as super-zoning boards” in the interpretation of the plan.

As a side note, this is one of those cases where I read the opinions and think that I could have gone either way on the analysis. All in all, I think the majority opinion got too caught up in the staff’s early categorization of the use as “agriculture: commercial” and didn’t focus enough on whether the use could be considered “activity and resource based recreational.” That said, and without the benefit of the record, the combination of a boarding facility, a riding school, and endurance contests seems to me to push it into a commercial use that is not “activity based recreation.” I also recognize that rural areas did, do and should permit more flexibility in how the lands are used productively and I would probably lean the other way if there was evidence that other, similar types of uses in the area and in the same land use category had similar levels of activity and mipact. If this kind of commercial activity related to rural/agricultural uses was intended, the Plan should have included a definition or description of "activity based recreation" to include things like canoe/kayak rentals, riding/boarding facilities, etc.

1st DCA – High Density Condo Hotel Does not Violate Plan that Sets Residential but not Transient/Hotel/Motel/Temporary Density.

Bay County and Laguna Beach Properties, LLC v Harrison and West Beaches Neighborhood Defense Fund, Inc., 34 Fla. L. Weekly D1099 (Fla. 1st DCA 2009),

The 1st DCA overturned a trial court decision that found a 279 condo/hotel project that is a “resort condominium” under state law to violate a 15 dwelling unit per acre residential density found in the comprehensive plan (the site is about 2 acres). The 1st found that the units were not “dwelling units” and that the plan – unlike many – did not set a separate density for “dwelling units” and “transient” type units (including resort condominiums).
This is a fairly straightforward plan interpretation case on one hand, but on the other shows that the 1st DCA still looks at the interpretation of comp plans with more acuity than almost any other district.

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.

Court permits creation of "aspirational policies" in comp plans

In Indian Trails Improvement District v. Department of Community Affairs , the 5th DCA approved the County's effective planning-based takeover of an independent utility's franchise area by creating a new category of "aspirational policies" which the local government can adopt with no supporting data and analysis.

What is an aspirational policy? Why would it be needed in a comp plan? What happens when the local government starts giving it regulatory meaning as justification for other actions?

On the other hand, the Court did hold that indirect impacts on a business or other interest can be sufficient to establish that a person is "aggreived or adversely affected" for standing.

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.

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?

How Do You Challenge Unpermitted Activity?

In Johnson et al v. Gulf County, the 1st District overturned a circuit court's dismissal with prejudice of a neighbor suit claiming improper activities in wetlands.

In one count, the neighbors had claimed under section 163.3215 that the activities violated various provisions of the comprehensive plan. The problem (like in Das v Osceola County) was that the county never issued a development permit for the activities because the county apparently either views the areas as "not wetlands" or views the activities as not needing permits, even if they are wetlands.

Question 1: is altering wetlands "development" ? Probably, if it is in anticipation of any construction activity - look at 380.04.

Question 2: if a local government fails to issue a "development order" to control an activity that constitutes "development," what is the remedy? Under Das v. Osceola County, the right under the statute to get temporary relief or relief to "prevent action" on a development order led the court to conclude that there was an obligation to issue some kind of public document that constituted an authorization to develop so that it could be challenged. In that case (which involved a pipeline), the County then issued a letter authorizing the activity (which the complaining neighbors then did not timely challenge b/c they thought they had the right to something more - oops, they didn't).

Here, it would seem that at the least the neighbors could write the county demanding that some authorization to proceed be granted, so that the same could be challenged.

Alternatively, the 1st DCA seemed to be leaving the door open to the Johnson's to try to re-pled nuisance. Here's an interesting question: is there a cause of action for "per se" nuisance where an activity (a) constitutes development; (b) does not have or does not require a "development order" under local land development regulations. and (c) is claimed to be inconsistent with the plan? There is a very good argument that there is a such a claim, so long as the plaintiff can establish common-law standing to bring the claim. The "exclusive" jurisdiction provision of 163.3215 applies only to claims that development orders are inconsistent with the plan, and it is clear from various provisions, including 163.3194, that developing inconsistent with the plan is unlawful.

It will be very interesting to see how this one proceeds on remand.

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.