Friday, October 24, 2008

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.

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