Resource for Recent Florida Environmental and Land Use Case Law

For those who are interested in recent environmental and land use case law in Florida, the Environmental and Land Use Section of the Florida Bar publishes its newsletter, the Section Reporter, online. As of the June 2011 edition, I am now coauthoring the Florida Case Law Update column with my colleague at Hopping Green & Sams, Gary K. Hunter, Jr.

Each quarter, we review and summarize the most important cases in the Florida appellate courts dealing with environmental, land use, growth management, property rights, and natural resources law. This quarter, we review the following cases:

• Miami-Dade County v. DCA, 54 So. 3d 633 (Fla. 1st DCA Feb. 28, 2011), explaining the judicial review powers of the Administration Commission, and judicial review of the Commission itself.
• Hasselback v. DEP, 54 So. 3d 637 (Fla. 1st DCA 2011), regarding proper legal notice of permits to be issued by the Department of Environmental Protection.
• City Nat’l Bank of Fla. v. Tampa, 2011 WL 1295874 (Fla. 2d DCA 2011), allowing state court review of federal equal protection claims under 42 U.S.C. section 1983.
• Graves v. Pompano Beach, 2011 WL 1376617 (Fla. 4th DCA 2011), establishing that plat approval does not constitute a development order under section 163.3215, Florida Statutes.
• Allen v. Key West, 2011 WL 1485992 (Fla. 3d DCA 2011), declaring a nonconforming land use where the previous owner relied on the city's actions and maintained all required licenses.
• Atwater v.  Weston, 2011 WL 1634234 (Fla. 1st DCA 2011), which I previously reviewed, dismissing a challenge to the 2009 growth management bill, SB 360.

As you come across relevant cases, please forward them to me.

Deadline approaches for forest landowners fighting beetle infestations

Pine beetle outbreaks in Florida have resulted in millions of cubic feet of pine timber over thousands of acres. Private, non-industrial forest landowners in northern and central Florida have a limited amount of time left to apply for a cost-share program designed to fight these pine beetle infestations. 

Because the program is intended as a preventative, landowners do not need to have an infestation to apply for the program. Payments may be used to pay for practices like first pulpwood thinning, pre-commercial thinning, prescribed burning, planting longleaf pines, and mechanical underbrush treatment. Funding must cover at least 10 acres and may not exceed $10,000. Unlike similar programs in previous years that were first-come-first-served, funding requests will be prioritized according to program priorities. Property is prioritized based on a number of factors, including the type of activity planned, whether funding has been given in previous years, whether a forest management plan has been prepared, and whether the region is at a high risk of infestation based on historical activity.

Landowners have until Monday, June 27 to submit applications to the Division of Forestry, part of the Florida Department of Agriculture and Consumer Services.

Will the Community Planning Act Revive Rural Land Stewardship?

The Community Planning Act and HB 7207 redesigned growth management in Florida. When the Act was signed into law, it changed more than just  the comprehensive plan amendment process. More quietly, the Community Planning Act made a number of other changes. For instance, it also prohibits comprehensive plan amendment referenda. It also may have resurrected an interesting large area planning tool called Rural Land Stewardship.

Rural Land Stewardship: Innovative, Large Scale, Rural Planning

Rural Land Stewardship was born out of Collier County's struggles in court to bring its comprehensive plan into compliance with the Growth Management Act. Collier County came up with a collaborative solution that was authorized by the Legislature as a pilot project. Governor Bush's Growth Management Study Commission suggested a form of the program as a way to bring incentive-based planning to rural areas. Early results looked promising, and the program was expanded for statewide use in 2004. Collier County's Rural Land Stewardship Program, which covers almost 200,000 acres, is still being implemented today. Collier County posts a great deal of data, analysis, and planning studies on its website about its program. 

Part of the beauty of Rural Land Stewardship, as implemented in Collier County, was its flexibility. It promoted agriculture, conserved land and resources, and protected private property rights. In 2009, I published an article finding that Rural Land Stewardship was important because it was one of the first programs in the country to show that growth management could be integrated with ecosystem services to conserve agriculture. Florida was truly on the cutting edge of large scale planning in rural areas.

Rural Land Stewardship, however, never took off. A second Rural Land Stewardship Area would have transferred the development rights from Adams Ranch in St. Lucie County to a non-contiguous development called Cloud Grove. It would have preserved about 17,000 acres. Family Lands Remembered has a good deal of information about this plan. DCA approved the plan, but St. Lucie County's support wore thin later. After years of negotiations, however, the plan failed to materialize. Different accounts of this areas' failure have circulated, but it did seem to spook planners and developers from the concept.

Furthermore, the Department of Community Affairs (DCA) hindered Rural Land Stewardship. It drafted a rule, 9J-5.026, Florida Administrative Code, making Rural Land Stewardship so difficult to implement, that it effectively killed the program. The rule development began in 2007, and landowners immediately became leery of a program with mercurial goals. Why spend thousands of dollars studying and planning with no assurances the game would be the same when DCA reviewed a project?

The Community Planning Act Revives Rural Land Stewardship

Over at the Florida Land Development Regulation blog, Laura Barber Bellflower has posted a helpful summary of the new Rural Land Stewardship statute. She has also posted a document showing how the previous §163.3177(d), Florida Statutes, was incorporated into the new §163.3248, Florida Statutes. For the most part, the new statute adds detail to the bare-bones structure of the previous statute. Some descriptive portions seem to have been taken from the rule, but they do not seem to overburden the updated program.

The Legislature made clear that it stands behind Rural Land Stewardship and large scale planning in Florida: "This section constitutes an overlay of land use options that provide economic and regulatory incentives for landowners outside of established and planned urban service areas to conserve and manage vast areas of land for the benefit of the state's citizens and natural environment while maintaining and enhancing the asset value of their landholdings." §163.3248, Fla. Stat.

Perhaps the most important aspect of the new Rural Land Stewardship statute is that rulemaking is not allowed. The statute must simply be implemented as it stands. Elsewhere in HB 7207, the Legislature repealed the Rural Land Stewardship rule, along with the rest of chapter 9J-5. Combined with the responsibility for growth management that has been handed to local governments through the Community Planning Act, the uncertainty caused by state-level policy may have been controlled.

Rural Land Stewardship is one of the "Planning Innovations" in chapter 163, Florida Statutes. It has yet to fully live up to its expectations. The Community Planning Act, however, has made Rural Land Stewardship more accessible and less bureaucratic. Sector plans, another large-scale planning tool for rural areas, were also made more accessible by the Community Planning Act. Together, these two tools give communities better options for large-scale rural planning.

See How Florida's New Comprehensive Plan Amendment Process Works: HB 7207 is Now Law

Governor Scott recently signed House Bill 7207 into law. The new law, the Community Planning Act, makes significant changes to Florida growth management system.  Even so, the changes are more course correction than rewrite. These changes went into effect immediately: they are now the law of the land.

There are certainly some big changes in store for Florida, as I've blogged about before. One big change is that all comprehensive plan amendments will now fall into one of three tracks. Because HB 7207 went into effect immediately, even current plan amendments and corresponding challenges must be processed along this new scheme.

See How the New Process Works

Hopping Green & Sams has developed a flow chart that diagrams these three tracks. It is clear from this flow chart that the state retains important oversight of comprehensive plan amendments. Generally, there is the state coordinated review track, the expedited review track, and a small scale review track. Third parties may mount a challenge against an amendment proceeding under any of these three tracks.

• The state coordinated review track is very similar to the previous amendment review process. It will be used for the most comprehensive or regional amendments. The state coordinates a review and issues an objections, recommendations, and comments (ORC) report. The local government then addresses issues raised in the ORC report. 

• The expedited review track will be used for the majority of comprehensive plan amendments. The local government is in charge of compiling comments from state agencies, which may comment on the amendments and challenge those that, in the agency's expertise, are found lacking.

•  The small scale amendment track is also similar to today's process for small comprehensive plan amendments. There is no state oversight for these small amendments, which must be limited to a map amendment and text directly implementing it. Depending on location, these are limited to 10 or 20 acres, and a local government may only use this process for 120 acres per year.

Consequently, many accounts of the law are just plain wrong. Perhaps the worst description quotes David Guest of Earthjustice, who said, "essentially, all of the growth management laws in Florida were repealed." Several blogs and environmental groups also call the law a "repeal." The New York Times was less bold, but it still called HB 7207 a "parting gift" to developers and implied that state oversight has disappeared and a culture of corruption will follow. Misunderstandings about Florida growth management system were legion, even before HB 7207, but these reports show incredible ignorance about the new law. The authors could have read one of the many summaries available prepared by practitioners who know the law. Some were probably upset that the law was pushed through without much debate, but that's no excuse for shoddy, opinionated reporting.

More Changes to Come

More changes are probably to come. For example, Senate Bill 2156 abolishes The Department of Community Affairs (DCA). DCA's Division of Community Planning, which administers Florida growth management laws, will be moved into the new Department of Economic Opportunity. This bill may be the source of some of the more absurd statements that Florida's growth management system is being abolished SB 2156 has not been sent to the governor's office yet, but it is widely expected to pass when it does.