Tuesday, October 1, 2013

To Review Comprehensive Plan Consistency, Go With What The Development Order Says, Not What the Developer (Or Government) Says

My posting has been sparse lately, and there are a number of cases that deserve some attention.

First up is U.S. Sugar Corp. v. 1000 Friends of Florida, - So. 3d -, 38 Fla. L. Weekly D1687 (Fla. 4th DCA Aug. 7, 2013). This case is short and sweet, and it stands for a simple point: in a comprehensive plan consistency challenge, the development order is evaluated by what the development order authorizes, and not what the developer says she is going to do under that development order (or the government, for that matter). That is, because development orders approved by a local government must be consistent with the local government's comprehensive plan. If they are not, then it is not enough for a developer to say that he or she will not undertake certain activities that are authorized by the development order.

In the 4th DCA's words:
Whether a development order is consistent with a comprehensive plan is determined by comparing what the order permits, not what the current holder intends to do under the order. The current order permits general commercial mining, a use prohibited under the comprehensive plan. The burden is on the applicant to show that the development order conforms strictly to the comprehensive plan. Machado v. Musgrove, 519 So. 2d 629, 632 (Fla. 3d DCA 1987). The adopted order is inconsistent with the plan. If in fact U.S. Sugar wants to mine in a manner consistent with the plan, then it should reapply and limit its application so that any order which grants the application would be properly consistent with the comprehensive plan.
The solution for landowners and developers is clear: don't overreach. If your project is not clearly authorized by the comprehensive plan, and the local government is willing to permit it, then you should amend the comprehensive plan. Otherwise, you could end up like U.S. Sugar, trying over and over again to get the same project permitted.