Thursday, February 7, 2013

Local Governments in Florida May Condition Land Development Orders on Expert Agency Review

A recent decision out of one of Florida's intermediate appellate courts has clarified some finer points of land use law. In Seminole Tribe of Florida v. Hendry County, - So. 3d -, 2013 WL 238231 (Fla. 2d DCA Jan. 23, 2013), the Tribe challenged a rezoning of over 3,000 acres for a Florida Power & Light power plant. The Tribe had already lost in a certiorari proceeding before the circuit court. In Florida, a land use certiorari proceeding works like an appeal--the logic being that the party has already had a quasi-judicial proceeding to present the case for its permit, request, or development order before a local board . Thus, the Second District Court of Appeal's (2d DCA) review was extremely narrow: it could only determine whether the circuit court afforded procedural due process and applied the correct law.

The 2d DCA, however, did clarify some finer points of Florida land use law. First, it re-emphasized a point that has been made in a number of cases: comprehensive plan challenges must be raised in their own separate lawsuit and not in a certiorari proceeding. The Tribe had argued that the county's land development code had, in essence, incorporated the county's entire comprehensive plan. This, the Tribe argued, meant that it could bring its comprehensive plan challenge in both the certiorari proceeding, as well as in another lawsuit it filed separately. The 2d DCA disagreed, reasoning that chapter 163, Florida Statutes, means what it says:
First, the Seminole Tribe argues that the Ordinance was not consistent with the comprehensive plan, in violation of LDC section 1–53–5.4(1) (2010). That section provides as follows: “Only uses which are consistent with the comprehensive plan ... may be approved as a PUD.” The circuit court properly found that section 163.3215, Florida Statutes (2011), would preclude the Seminole Tribe from raising this issue in a petition for writ of certiorari. That section states that it provides the exclusive methods for a party to challenge the consistency of a development order with a comprehensive plan. § 163.3215(1). It provides that an adversely affected party may maintain a de novo action for declaratory or other relief to challenge a development order. § 163.3215(3). The Seminole Tribe filed a separate action under this subsection along with its certiorari petition. Though section 163.3215(4) provides that an adversely affected party may challenge a development order solely by filing a petition for writ of certiorari if the local government has adopted an ordinance establishing various requirements, the parties have not identified and we have been unable to locate all of these requirements in the Hendry County Code. Consequently, the circuit court afforded procedural due process and applied the correct law in refusing to hear the issue of comprehensive plan consistency on certiorari review.
Second, the 2d DCA made clear that a local government can condition a requirement for a development order on an agency's review of that requirement (and its approval). This issue is critical for small and cash-strapped local governments: why should they have to try to analyze a complicated issue like the water consumption of a power plant, when an expert state or federal agency will be doing the same thing at a later time? The 2d DCA confirmed that they do not have to:
The circuit court determined that the County has sufficiently addressed the issue of water use by conditioning the Ordinance on the approval of the South Florida Water Management District (SFWMD). The circuit court concluded that the water usage issues are within the exclusive jurisdiction of the Department of Environmental Protection or its successor, SFWMD. To support this proposition, the court pointed to section 373.217, Florida Statutes (2010), which authorizes the Department of Environmental Protection to provide programs for the issuance of permits for the consumptive use of water; states that the Florida Water Resources Act of 1972, sections 373.203–373.249, Florida Statutes (2010), provides the exclusive authority for requiring permits for the consumptive use of water; and establishes that the Florida Water Resources Act of 1972 supersedes any conflicting law or ordinance. [See also section 373.023, Fla. Stat.]. These statutory sections indicate that the water impact will be addressed by SFWMD and that the County ensured compatibility by conditioning the Ordinance on SFWMD's approval. 
As to wildlife, the circuit court determined that the County had satisfied its obligation to ensure compatibility by requiring approval by the appropriate state and federal agencies having jurisdiction over water, wetlands, and wildlife habitat. The court pointed to article IV, section 9, of the Florida Constitution, establishing the Fish and Wildlife Conservation Commission to exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life. Establishing this condition was an appropriate way to ensure compatibility regarding wildlife. See LDC § 1–53–5.3(c). The circuit court afforded due process and applied the correct law as to these issues of compatibility.
There are some interesting issues in the background of this case concerning Florida's Power Plant Siting Act (PPSA), which is basically a one-stop permitting shop for power plants. But they did not come out much in this opinion. The Tribe has another appeal pending that raises interesting issues concerning how the PPSA  interplays with Florida's Community Planning Act. We'll just have to wait to see what the 2d DCA does with that case. In the meantime, if you're interested in learning more about the PPSA, the definitive article on it was just published last October. The author, Douglas Roberts, was my former colleague and one of the attorneys representing Florida Power & Light in this case. (In full disclosure, I helped represent Florida Power & Light in this case and the appeal.)