Sunday, August 14, 2011

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.


  1. You may want to take a look at the briefs in the Graves case. They show that the issue was more complex than the 4th DCA opinion made it seem. The developer also argued that the plat was not "development" because the plat notations were actually restrictions akin to restrictive covenants and because plats are merely the "legal identification" of property.

    In any case, I don't think we've seen the last of this issue. Maybe not even in the 4th DCA - I see a motion for rehearing or rehearing en banc has been pending since late May.

  2. I also don't understand how the court missed the fact that the definition of "development" goes on to say that development is the "dividing of land into three or more parcels" and that the quoted definition of "development permit" includes "subdivision approvals." For most plats, those conditions would be relevant and in most jurisdictions the plat approval process is an intergral part of the subdivision process.

    It is not clear from the case facts, however, whether the plat at issue actually resulted in the division of the parcel into three or more parcels or was, under the Pompano code, actually a "subdivision," so it is possible that the subdivision approval/three lot division might not have come into play. But it seems strange for the court to make what appears to be such a broad pronouncement (a plat is not a development order), if the court's decision actually turned on narrow facts.

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