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.

A New Attack on a Comp Plan Amendment - and Concurrency Creates Need for Interlocutory Review

OK, this one is innovative and interesting - and I can't believe it hasn't been raised before.

In CNL Resorts v. City of Doral, the 3d DCA overturned an ALJ order that dismissed a counts in a challenge to a comprehensive plan amendment that claimed inconsistency with the provision of the state comprehensive plan that requires consideration and protection of private property rights.

The first interesting issue was that the court accepted the interlocutory appeal of the dismissal on the basis that concurrency windows were shutting and would harm the landowner:

Here, we agree that CNL would be deprived of an adequate remedy and suffer
irreparable injury due to the City having limited roadway capacity. In order to
develop property, landowners need to obtain the requisite permits from the City.
Thus, during the pending proceedings, the surrounding permitted neighbors will
continue to develop their properties and consume the available roadway. In turn,
once the available roadway capacity is filled, CNL will not be able to obtain a
permit, and its development rights will be extinguished. Therefore, CNL has
shown there is no adequate remedy without this Court’s immediate review, and we
have jurisdiction to hear CNL’s petition

On the substantive issue, the ALJ had found that the petitioner was trying to raise constitutional claims that were not proper in the administrative forum. The 3d DCA disagreed, finding (correctly, I think) that the claim was whether the statutory requirement to consider and respect property rights had been met.

If this challenge is ultimately successful, it creates an interesting theory for landowners who believe that the plan provisions improperly restrict property rights - worth reading for everyone.

4th DCA - No Repeal Referendum for Small Scale Amendment and Rezoning (take that Blackner!)

In City of Lake Worth v. Save Our Neighborhood, the 4th DCA gave Hometown Demogogcy founder Leslie Blackner a black eye when it rejected the lower court's decision that allowed a recall referendum to be initiated against city ordinances that adopted a small-scale plan amendment and rezoning.

At issue was Section 163.3167(12), which prohibits any initiative or referendum for plan amendments affecting five or fewer parcels. The statute was adopted specifically to ensure that small scale plan amendments would not be subject to referendum when the status of those amendments as legislative versus quasi-judicial was still at issue.

Ms. Blackner and Ross Burnaman misled the Florida Supreme Court into error in the Hometown Democracy ballot summary case, and Burnaman helped with the 2d DCA's St Pete Beach debacle, by arguing that the prohibition of some initiatives regarding plan amendments indicated legislative approval of all others (though this was clearly NOT the intent).

Now Ms. Blackner argued that the statute didn't prohibit using a referendum to repeal a small scale plan amendment and rezoning on the basis that parcels other than those subject to the amendment and rezoning were "affected" by it. Somehow, they got the trial court to buy this clearly ridiculous argument, which would effectively gut the restriction totally. The Fourth didn't buy it and overturned the circuit court.

4th DCA - 4 Limitation on Inverse Condemnation for Illegal Exaction and Stealing Doesn't Offend Public Policy

In a probably correct opinion that is marred by very bad discussions of public policy, the 4th DCA held in New Testament Baptist Church v. FDOT that the lower court properly dismissed a counter-claim/cross-claim for inverse condemnation brought 13 years after an allegedly illegal dedication demand.

The claim was brought by a church that had been required to dedicated 7.5 acres (of its 19) in 1992 for streets (that the city didn't build) in order to get a plat approval. When the DOT went to condemn more of its property in 2005, the church cross complained that the earlier dedication was illegal.

The 4th cites a bunch of other cases finding that inverse condemnation cases need to be brought within 4 years. The cited cases, however, involved direct regulation, not exactions. The court distinguishes several exaction cases where the claim was made much later than the regulatory requirement.

The disturbing issue is the court's treatment of the question of whether an unconstitutional exaction is void or voidable. The court noted that contracts or other actions that are in violation of public policy are void. The court then holds that even an illegal dedication requirement doesn't implicate public policy because only the victim of the illegal act is harmed. The court goes on to justify this position by claiming that the church "benefitted" from the plat. This totally flies in the face of the "unconstitutional condition" cases that Nolan and Dolan spring from, which recognize that where the government imposes an illegal and unconstitutional condition on a government action on a permit or benefit, the victim does not need to refuse to accept the benefit in order to complain.

The Court forgets the basic tenet: the issuance of a development order is not a "benefit" to the landowner because the landowner has an underlying property right to develop. The development order is the governments' OBLIGATION arising from its choice to regulate a property right in the public interest; a landowner's development pursuant to a plat is not the "acceptance of a benefit" from the government because the landowner has the underlying right in the first place.