Should Florida Scrap the Development of Regional Impact Process?

One of my goals in the new year is to get back on the horse here at my blog. Last year was a great year for personal and professional development, but the blog suffered. I've been encouraged to receive so many emails from readers asking me to continue working on it in 2015.

First up is something to watch for in this year's legislative session. Over at Context Florida, Bruce Ritchie has a good piece on whether Florida's Development of Regional Impact (DRI) should be scrapped. The genesis of the article was Bob Rhodes's article in Florida Planning asking the same question. Bob's opinion goes a long way, since he was the first administrator of the DRI program and he chaired the State of Florida Environmental and Land Management Study committee (ELMs II).

Think of the DRI process as a significant layer of state and regional regulation placed on top of Florida already robust growth management regime for big projects. Over time, the significance of the DRI program has eroded, but it causes a great deal of headache when it does come up. Management of legacy DRIs takes an enormous amount of time that might be better spent elsewhere.

The legislature reduced its importance to some degree with the Community Planning Act in 2011, and it considered reducing its importance even more just last session. Looks like it may well surface again this session.

Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its columns on the environmental and land use cases in Florida that you need to know about for the third quarter of 2013, as well as the fourth quarter of 2013. Here is what we've got this quarter:

• Hillcrest Prop., LLP v. Pasco County, 24 Fla. L. Weekly, Fed. D 33 (M.D. Fla. 2013), finding that a local government may not require property owners to give up property in exchange for development permits, where the exaction is unconnected to the development's impact. Read more from on my friend Robert Thomas's blog. Disclaimer: my firm represents the plaintiff property owner in this case, and we submitted an amicus brief to the U.S. Supreme Court in the Koontz case on its behalf.

• Town of Ponce Inlet v. Pacetta, LLC, No. 5D12-1982, 2013 WL 3357520 (Fla. 5th DCA July 5, 2013), reversing the trial court decision that I've written extensively about, and holding that a Bert Harris Act claim for the burdening of vested rights cannot be premised on local government assurances that it will amend its comprehensive plan.

• Collins v. Monroe County, No. 3D11-2944, 2013 WL 3455608 (Fla. 3d DCA July 10, 2013), determining that a special master's administrative recommendation that a local government purchase properties because they may be a taking is not enough to prove the taking, where the landowners could not prove they had explored the properties' development potential.

• Seminole Tribe of Fla. v. Hendry County, 114 So.3d 1073 (Fla. 2nd DCA 2013), holding that a local government's land use procedures were not preempted by the Power Plant Siting Act when a property owner applied for a local government land use permit before activating Power Plant Siting Act review.

• Maronda Homes v. Lakeview Reserve Homeowners Ass’n, No. SC10-2292, No. SC10-2336, WL 3466814 (Fla. July 11, 2013), deciding that the implied warranties of fitness and merchantability apply to certain common areas, and a Florida law limiting these warranties cannot be applied retroactively.

• Angelo’s Aggregate Materials v. Pasco County, 118 So.3d 971 (Fla. 2d DCA 2013), holding that a local government may not require an administrative vested rights process to be exhausted by a landowner before requesting that a court issue a declaratory judgment.

• Manley v. City of Tallahassee, 2013 WL 4007650 (11th Cir. 2013), determining that a local government does not deprive a landowner of his property in violation of due process where it approves a site plan of a neighbor without allowing the landowner to be heard, even if the landowner has an access agreement concerning the neighbor's property.

• Foley v. Orange County, 2013 WL 4110414 (M.D. Fla. 2013), finding that a local government may not enact or enforce land use regulations in conflict with general laws and regulations concerning the care and keeping of exotic animals.

• U.S. Sugar Corp. v. 1,000 Friends of Fla., 2013 WL 4017136 (Fla. 4th DCA 2013), holding that comprehensive plan consistency is determined by analyzing the face of a development order, and not by what the developer intends to do under the development order.

• CBS Outdoor, Inc. v. Fla. Dep’t of Transp., 2013 WL 5744443 (Fla. 1st DCA 2013), determining that where Florida law allows the owners of signs and billboards to engage in an administrative process to receive compensation for blocked view, the billboards must conform to local, state, and federal regulations for their owners to use this process.

If you're so inclined, over two years' worth of these cases and these summaries on new environmental and land use cases in Florida are in my archives.

Developments of Regional Impact to Surface in 2014 Legislative Session

Bruce Ritchie recently wrote a good summary in the Florida Current of a bill concerning Developments of Regional Impact (DRIs). Here's an excerpt:

A bill filed in advance of the 2014 legislative session would allow six more counties to avoid review by the state of some growth management decisions, continuing a trend in recent years of increasingly less state oversight. 

In 2009, the Legislature passed SB 360 exempting counties designated as "dense urban land areas" from state review for "developments of regional impact." Environmental groups requested a veto but then-Gov. Charlie Crist signed the bill. 

For years, developers and some cities and counties supported less review of those larger developments because of the longer timeframe required for approval. Some developers also try to avoid passing thresholds, such as the number of homes in a proposed project, that would trigger state review. 

The 2009 legislation exempted those developments of regional impact (DRIs) from state review in counties with populations of 900,000 and at least 1,000 people per square mile of land area, unless the proposed developments were in designated "urban service areas" around cities. 

In 2013, 242 cities met the requirement along with eight counties: Broward, Duval, Hillsborough, Miami-Dade, Orange, Palm Beach, Pinellas and Seminole. 

SB 372, filed by Sen. Bill Galvano, would provide the dense urban land area designation to counties with at least 300,000 or densities of 400 people per square mile. 

Fourteen cities would fall within the exemption along with six additional counties: Brevard, Lee, Manatee, Pasco, Sarasota and Volusia, according to Galvano's office.

There is commentary from interested parties, including yours truly. As I mention in the article, it seems like a good idea to continue to test the Legislature's renewed interest in letting communities run their own show. In the most populated local jurisdictions, there does not seem to be as much of a need for the cumbersome DRI process as there may have been in the past.

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.

What Effect has the Community Planning Act had on Growth Management in Florida?

Robert Rhodes has a thoughtful piece in the Florida Bar's Environmental and Land Use Section Reporter, entitled "The 2011 Community Planning Act: Certain Change, Uncertain Reform." Bob served as the first chair of the section. In his piece, he focuses on the Community Planning Act's effects on the state's oversight role and its defects. Ultimately, he proposes:

[T]he Legislature should statutorily define the operative terms, important state resources and facilities, and adverse impact. This is core legislative policy-making and a legislative prerogative and responsibility. For reference points, the Legislature can review current state planning policies noted below, the statutory definitions of development of regional impact and the general law guidelines for designating an area of critical state concern. Other useful reference points are the SRPPS, which identify regionally significant resources and facilities.

Depending on the specificity of the statutory definitions, they can be further refined by rules developed by the Governor and Cabinet with the assistance of DEO and other review agencies. If the Legislature decides not to statutorily define the operative terms, rules should be developed and could be subject to legislative review and possible action.

Rulemaking is more than a policy choice. Standing alone, the undefined operative terms are vulnerable to constitutional attack because they are broad, vague, variable and delegate unrestrained legislative policy making to the executive branch review agencies.

He also discusses the state agency's burden of persuasion and how to clarify the act's compliance standards. Bob concludes:

The 2011 Act was branded by proponents as significant growth management reform. Reform means to change for the better, to improve. But it may also mean to end. I’m optimistic the recent legislation may be a catalyst in many communities for improvement and not the beginning of the end of the state planning program. But to borrow a phrase from The New York Times columnist Tom Friedman, I’m now a paranoid optimist.

Upcoming Presentation about Sustainability and Property Rights

On Friday, September 13th at 9 am, come out to the Florida Chapter of the American Planning Association's (APA) annual conference. I'm joining a distinguished panel to discuss sustainability and property rights in a presentation entitled "Where do property rights fit into sustainability? Recent developments affecting planners." We'll discuss a number of cases and developments that I've written about here, such as the Koontz, Ponce Inlet, and Hillcrest cases. Here's a brief description of what you'll learn about:

Are private property rights compatible with sustainability? The law is evolving: what do planners need to know? The U.S. Supreme Court is poised to decide a case from Florida that could have serious implications for how governments can use development exactions. At the same time, the legislature is considering exactions legislation. Another case from Florida could lead to bankruptcy for a local government in Florida if its takings and Bert Harris Act judgments are affirmed on appeal. The panelists will discuss the challenges, pitfalls, and even the opportunities that these developments present.

As I mentioned, we have a great lineup besides yours truly, including:

• Nancy E. Stroud, Esq., AICP, of Lewis, Stroud & Deutsch, P.L., who represents local governments in land use and development matters, drafted the Florida Chapter of the APA's amicus  brief in the Ponce Inlet case, and who serves on the APA's national amicus committee (which submitted a brief supporting the government Koontz)
• Linda R. Hudson, Esq., who is Senior Assistant City Attorney for the City of Tallahassee and is experienced in a variety of planning, environmental, growth management, and land use matters
• Seth. C. Behn, AICP, of Lewis, Longman, & Walker, P.A., who works with a law firm to represent developers in the land use entitlement process

The brochure for the conference is attached.

A Cautionary Tale for Environmental and Land Use Practitioners: Florida Supreme Court Declines to Review Environmental Organization Sanctions

Today, the Florida Supreme Court decided not to a review a 1st DCA decision sanctioning environmental organizations. Martin Cnty. Conservation Alliance v. Martin County, - So. 3d. -, 2013 WL 1908644, No. SC11-2455 (May 9, 2013), dismissing as improv. granted Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011) (original opinion revised on motion for rehearing). The Court originally accepted jurisdiction of the case on the grounds that the 1st DCA opinion expressly and directly contradicted with a decision by another district court of appeal. After further review, the Court determined that jurisdiction was improvidently granted and declined review of the case.

Keep in mind that, under Article V, Section 3 of Florida's Constitution, the Florida Supreme Court's jurisdiction is fairly limited. It has much stricter limitations on the cases it can hear than does the United States Supreme Court. In Florida, our court system has been set up so that the five district courts of appeal are the courts of last resort except in certain circumstances. This was not one of those circumstances.

That means the 1st DCA's opinion from 2011 is now final. As a reminder, I said previously that this case would be important to watch for anyone interested in environmental, land use, or administrative law in Florida. In a previous post, I explained:

[The Alliance] challenged two ordinances amending the Martin County comprehensive plan .... The Administrative Law Judge (“ALJ”) concluded the amendments would not cause environmental harm, and the Department of Community Affairs affirmed via issuance of an “in compliance” final order. The appellants appealed, but the First DCA dismissed the appeal for lack of standing, and it ordered appellants to show cause why sanctions should not be imposed for filing an appeal where appellate standing was lacking. The court, on its own initiative, has since withdrawn that order and replaced it with one holding the appeal to be in violation of section 57.105(1), Florida Statutes, and imposing sanctions .... Consequently, the First DCA imposed sanctions, stating that by advancing legal positions unsupported by material facts or law, appellants were statutorily subject to section 57.105 sanctions.

For a much more in-depth analysis, see my review of the 1st DCA opinion in the April 2012 edition of the Florida Bar's Environmental & Land Use Law Section Reporter.

This case serves as a cautionary tale to environmental and land use practitioners--and their clients--that advocacy in support of a position can sometimes go too far. That's not to denigrate the advocates in this case. There were good lawyers on both sides of this issue. But it should certainly go into the calculus of thinking about cases now. Per the 1st DCA's order, the sanctions will now be borne in equal part by the environmental organizations and their attorneys.

EDIT 5/10/2013: Bruce Ritchie has an article up at the Florida Current about the decision.

EDIT 5/29/2013: I've made some slight adjustments in the article to indicate that the Florida Supreme Court actually dismissed the case as improvidently granted, meaning that it accepted the case for review, and after considering it further, declined to review it.

Early Issues for Landowners in the 2013 Legislative Session

People are starting to talk about the 2013 legislative session in Florida, which runs from March 5 to May 3. Here are some of the issues and bills that are being talked about. First, the Florida Current reports that there does not seem to be much appetite for changes to Florida's growth management system after the big changes in 2011:

After sweeping growth management law changes in 2011, most legislators and interest groups were content in 2012 to leave the issue alone while cities, counties and developers adjust to the changes. They still feel that way in 2013. However, a court case and a legal opinion involving growth management are creating a stir on a pair of issues. 

One involves referendums on development and changes made by a "glitch bill" that passed in 2012. A circuit court judge in Palm Beach County ruled in October that HB 7081 in 2012 now allows Boca Raton residents to seek a referendum challenging the proposed Archstone apartment complex there. That ruling has developers seeking clarifying legislation. 

Another issue stemming from the 2011 law involves transportation "concurrency" and a system for charging developments for needed road improvements. In 2012, the Florida Association of County Attorneys said a requirement for allowing developers to pay only their "proportionate share" doesn't apply to counties with other systems for collecting mobility fees.

The Florida Forestry Association has an update on some interesting bills: 

Alternative Water Supply Development – HB 109 by Rep. Dana Young, SB 364 by Sen. Alan Hays. Florida’s population growth has taxed our water resources. Florida’s forested lands can be part of the solution through surface water storage and aquifer recharge. Extended consumptive use permits for water utilities would enable them to raise bonded revenue to fund the infrastructure needs for alternative water supplies. Both bills have been approved by their respective Agriculture Committees and now go to the House State Affairs Committee (HB 109) and the Senate Community Affairs Committee (SB 364). 

Ag Lands & Practices Act – HB 203 by Rep. Halsey Beshears. The Ag Lands & Practices Act adopted in 2003 preempted counties from adopting any new ordinance regulating a farm or forestry operation beyond adopted BMPs. While this has been very effective, an effort is now underway to expand this preemption from counties to governmental entities. HB 203 was approved by the House Agriculture Committee and now goes to the Local & Federal Affairs Committee. Sen. Jeff Brandes has filed a companion bill in the Senate, but a bill number has not been assigned yet. 

Green Building Certification – HB 269 by Rep. Halsey Beshears. The Department of Management Services (DMS) has adopted the LEED green building rating system for state construction projects. LEED does not accept wood products certified under the SFI or Tree Farm system, which means it excludes virtually all Florida wood products from being used in new state construction projects. Rep. Halsey Beshears has filed legislation requiring DMS to adopt a green building rating system that does not discriminate against Florida wood products. His bill would require Florida wood products to be considered first when the use of wood is required for state construction projects. HB 269 has been placed on the agenda of the House Energy & Utilities Committee next week. Sen. Greg Evers has filed a companion bill in the Senate, but a bill number has not been assigned yet.

The Florida chapter of the American Planning Association also writes on two bills, one with interesting property rights implications:

SB 584 (Senator Hays) would prohibit the state, a county or a municipality from buying land for conservation purposes unless: 1) An accurate inventory, not more than 1 year old, of government-owned property is made public; (2) Sufficient funds are approved in the annual budget for the maintenance of existing properties; (3) An analysis describing the annual cost of maintenance of the proposed land purchase is completed; and (4) An equal amount of public property not being held in conservation is returned or sold at fair market value to the private sector. There is no companion bill filed yet in the House. 

HB 673 (Rep. Perry) and SB 772 (Senator Brandes) are identical bills that would amend the Bert Harris Act (Chapter 70, F.S.) to prohibit a local government entity from directly or indirectly imposing a tax, fee, charge or exaction against private property that: 1) does not result from a development or proposed development with a essential nexus to development impacts upon infrastructure or other public facilities; or 2) is more stringent than an exaction imposed by a state or federal agency unless the local government entity demonstrates that the exaction is reasonably necessary. This bill appears to create a more stringent test than Nollan/Dolan requirements or “the rationale nexus" test stemming from Florida case law that has governed impact fees and other exactions for decades. SB 772 has been referred to the Senate Community Affairs Committee and Judiciary; HB 673 has been filed but not yet referred to committees.

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.)

Join Me This Week for a Discussion about Agriculture, Planning, & Policy

Join me on Thursday of this week in Naples at the Florida Chapter of the American Planning Association's annual conference. I'll be moderating a panel discussion entitled "Agriculture Law & Policy in Florida: What Planners Need to Know." Here's the excerpt from the conference brochure:

Though the economy has slowed, growth pressures continue, while the local food and small farms movements gather steam. Planners are working to understand and address these issues. But agriculture is different. From agricultural enclaves under growth management law, to the Right to Farm Act, to the numerous preemptions against regulation by local government, Florida law and policymakers treat agriculture differently. After discussing the laws that planners should be aware of, the panelists with discuss the challenges, pitfalls, and opportunities that agriculture presents. Special emphasis will be placed on agriculture at the rural-urban fringe.

We have a great panel put together to discuss the issues that the planning community needs to know about. Here are the biographies for our panelists:

Robert Halman is the Collier County University Extension Director and Agricultural Agent with 26 years of extension experience providing timely, relevant programming for small farm operators and agribusiness enterprises. His focus is on sustainable agricultural enterprises, farm agrosecurity, emergency preparedness, and thriving communities. The agricultural program involves one-on-one consultations, farm visits, topical programming and facilitating community civic engagements. Robert has a B.S. in Dairy Science, a M.Ag. in Dairy Science, a M.S. in Food and Agricultural Science.

Phil Leary is a City Commissioner in Palatka. Previously, Phil served as the Planning Director for Clay and Putnam Counties and as Director of Government & Community Affairs for the Florida Farm Bureau Federation, the largest general farm membership organization in the state of Florida. While there, he represented Farm Bureau policy positions on local government land use, growth management, and environmental regulation. Phil continues his work on these issues at his government consulting firm. Phil received a B.S. in Agriculture from UF and completed post graduate work in Public Administration, Policy, and Planning at UNF.

Pat Steed is the Executive Director of the Central Florida Regional Planning Council. She has served as Planning Director for Polk County and the City of Lakeland, the MPO Coordinator, and as a Project Director for a national consulting firm. Pat has served on statewide committees, including DCA’s Rural Land Stewardship Advisory Committee. Currently, Pat is managing the Heartland 2060 visioning effort and development of a Regional Plan for Sustainable Development, which covers over half of Florida’s productive agricultural land. These efforts recognize the importance of viable agri-business for economic sustainability, including alternative crops and biofuels.

Joseph Gocsik received his Bachelor of Science in Natural Resources from The Ohio State University in 1996. In 1997 Joseph was hired as the Timber Forester for the 150,000 acre Withlacoochee State Forest where he was able to learn the “hands on” history of management practices in Florida and was introduced to the majority of habitats that currently exist. After serving the public for 2 ½ years Joseph chose to join a private forestry consulting firm in 2000 and served as a senior consulting forester and eventual division manager until January of 2008. In February of 2008 Joseph created Forest Environmental Solutions, LLC “FES” in hopes of better serving client needs, while providing them the best management services possible.

Jake Cremer is a fifth generation owner of timberlands in Florida, and he grew up working in his family’s timber operations. He served the Department of Community Affairs as a Gubernatorial Fellow and has received FAPA’s Outstanding Student Planner Award. Currently, he represents landowners in interactions with government at Bricklemyer Smolker & Bolves in Tampa. He assisted in the defense of property rights before the U.S. Supreme Court in the controversial Stop the Beach Renourishment case. Jake received a BA in Economics & Business from Rhodes College. He holds a JD and MSP in urban and regional planning with a certificate in real estate development from FSU.

Florida Supreme Court Grants Review of Decision Sanctioning Environmental Organizations

The Florida Supreme Court has granted review of a 1st DCA decision sanctioning environmental organizations. See Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011) (original opinion revised on motion for rehearing). This case will be one to watch for anyone interested in environmental, land use, or administrative law in Florida. Any decision will have implications for the costs of doing business in Florida.

I recently summarized the Martin County case in the Florida Bar's Environmental & Land Use Section Reporter, explaining how the main issue was whether the Martin County Conservation Alliance should have asked an appellate court to review the administrative decision below:

[The Alliance] challenged two ordinances amending the Martin County comprehensive plan .... The Administrative Law Judge (“ALJ”) concluded the amendments would not cause environmental harm, and the Department of Community Affairs affirmed via issuance of an “in compliance” final order. The appellants appealed, but the First DCA dismissed the appeal for lack of standing, and it ordered appellants to show cause why sanctions should not be imposed for filing an appeal where appellate standing was lacking. The court, on its own initiative, has since withdrawn that order and replaced it with one holding the appeal to be in violation of section 57.105(1), Florida Statutes, and imposing sanctions .... Consequently, the First DCA imposed sanctions, stating that by advancing legal positions unsupported by material facts or law, appellants were statutorily subject to section 57.105 sanctions.

The arguments the parties will make are foreshadowed in their jurisdictional briefs. The Alliance argued that environmental advocacy will be chilled:

The Decision, over a strong dissent, and with 6 judges voting to rehear the case en banc, sanctioned non-profit organizations for appealing an agency's rulings on the proper legal interpretation of comprehensive plan changes. The Decision is of exceptional importance, as it unduly limits the ability to seek appellate redress of a wide variety of administrative agency and other [stet]. The purpose of deterring baseless litigation must be carefully counter-balanced against protecting all citizens' rights of access to the courts. See Read v. Taylor, 832 So. 2d 219, 222 (Fla. 4th DCA 2002). Here, the Dissent expressed a deep concern over the Decision's chilling effect on good faith efforts to seek appellate redress by parties without deep pockets, and the potential denial of the Florida Constitution's right of access to courts. Decision at 37 -38. (Van Nortwick, J. Dissenting).The Decision may ensure that no citizen will ever again initiate legal remedies that the Legislature has established regarding environmental and land use matters. Such cases often present close issues, as the nuances between the majority and dissenting decisions in this case demonstrate. Few, if any, parties with legitimate claims would dare embark on such an action if the result of not prevailing on the merits is a punitive assessment of attorney's fees. Petitioners urge the Court to accept jurisdiction to reconcile the identified conflicts.

Martin County, however, argued that the decision was well-reasoned and unexceptional:

The district court’s decision imposing sanctions on Petitioners and their attorney does not “expressly and directly” conflict with a prior decision of this Court or another district court “on the same question of law.” Neither of the two “species” of such “holding conflict” jurisdiction is present here .... The district court’s decision simply involves a sound exercise of its discretion, imposing sanctions under section 57.105(1), Florida Statutes, because Petitioners and their attorney knew (or should have known) that the record below clearly showed they had not presented any evidence that their own interests would be “adversely affected” by the challenged amendments to the Martin County comprehensive plan, and thus Petitioners lacked standing to appeal the state agency’s final order approving adoption of the amendments. See 120.68, Fla. Stat.

The online docket reports that the Court accepted jurisdiction and dispensed with oral argument. The Alliance must serve its brief on the merits by June 5, 2012. Afterwards, the respondents get 20 days to respond, and then the Alliance gets 20 days to reply. This means that the case will be fully briefed by mid-July, assuming no extensions are granted. A number of organizations are intending to write amicus curiae briefs, including Disability Rights Florida, Inc., Florida Legal Services, Southern Legal Counsel, Inc., Florida Wildlife Federation, and the Florida Chapter of the American Planning Association.

Stay tuned. I'll be commenting once the briefs are in.

Yankeetown Litigation Settled by Community Planning Glitch Bill

Governor Scott signed the Community Planning Glitch Bill.The bill corrected a number of problems with last year's Community Planning Act, including approving language settling Yankeetown v. DEO (37 2011 CA 002036). Yankeetown had asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional. The real problem was that the Act did not grandfather previously-enacted local government comprehensive planning referendum requirements when it prohibited them.

The docket for the case shows that the Yankeetown filed a notice of voluntary dismissal earlier this month. That means the case is over, and the Community Planning Act appears safe from constitutional attack. Some are celebrating "the will of the people," but only time will tell whether the communities that have kept their referendum requirements will be better off for it.

Community Planning Glitch Bill Headed to Gov. Scott's Desk

House Bill 7081 is headed to Governor Scott's desk after being passed by the Senate yesterday. The bill approves language settling Yankeetown v. DEO (37 2011 CA 002036). Yankeetown had asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional. The real rub for Yankeetown was that the Act did not grandfather previously-enacted local government comprehensive planning referendum requirements when it prohibited them. This glitch reportedly also affected Longboat Key, Key West, and Miami Beach.

The House staff analysis is available here. It notes some other effects of the bill:

• clarifying provisions relating to the coordination between local governments and military installations regarding local land use decisions;
• providing criteria for municipalities and the unincorporated area within a county to use in determining population projections;
• removing criteria that exempts certain municipalities from being signatories to the school interlocal agreement as a prerequisite to implementing school concurrency, because school concurrency is now optional, and restoring criteria to exempt certain municipalities from being a party to the school interlocal agreement; 
• extending the time for the state land planning agency and the Administration Commission to issue recommended and final orders, since the current time requirement is unworkable, and providing a time requirement for the state land planning agency to issue a notice of intent for a plan amendment adopted pursuant to a compliance agreement;
• deleting a required annual report by the Department of Economic Opportunity related to the optional sector plan pilot program.

Environmental and Land Use Considerations for Real Estate Transactions 2012

The Environmental & Land Use Law Section and the Real Property, Probate & Trust Law Section of the Florida Bar are jointly hosting an upcoming Continuing Legal Education Seminar that should interest real property attorneys. It will also be useful to attorneys involved at any stage of the development process who want to gain a better understanding of the environmental and land use components of that process.Past feedback from this CLE has been very positive.

The CLE, entitled "Environmental and Land Use Considerations for Real Estate Transactions 2012," will be April 20, 2012, at the Tampa Airport Marriott. The schedule is below. I am co-chairing this CLE program, so please email me if you have any questions.

8:00 a.m. – 8:30 a.m. Late Registration

8:30 a.m. – 8:45 a.m. Welcome & Case Study Introduction
Eleanor W. Taft, Eleanor W. Taft, P.A.
Jacob T. Cremer, Hopping Green & Sams, P.A.

8:45 a.m. – 9:30 a.m. Contract Issues for Land Transactions for Properties with Environmental & Land Use Concerns
Barry B. Ansbacher, Ansbacher & Associates, P.A.

9:30 a.m. – 10:15 a.m. Practical Considerations for Incorporating Sustainable Development into Real Estate Projects
Nicole C. Kibert, Carlton Fields

10:15 a.m. – 10:30 a.m. Break

10:30 a.m. – 11:15 a.m. Growth Management after the Community Planning Act
Adam J. Gormly, Hillsborough County Attorney’s Office

11:15 a.m. – 12:00 noon Local Government Land Use Hearings: What Does QuasiJudicial Mean, Anyway?
Laura B. Belflower, Laura B. Belflower, P.A.

12:00 noon – 1:15 p.m. Lunch (on your own)

1:15 p.m. – 2:00 p.m. Old & New: Bert Harris Issues and Property Rights Cases (Including Koontz)
Ronald L. Weaver, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

2:00 p.m. – 2:45 p.m. Who Controls Entitlements and Permits after Foreclosure?
Jason E. Merritt, Hopping Green & Sams, P.A.

2:45 p.m. – 3:00 p.m. Break

3:00 p.m. – 3:45 p.m. Wetlands Permitting Issues
Amy Wells Brennan, SWFWMD

3:45 p.m. – 4:30 p.m. Sovereign Submerged Lands Issues: Permitting & Leasing
Virginia C. Dailey, Hopping Green & Sams, P.A.

Legislation Settling Yankeetown Case Approved by House & Senate

I wrote back in December about the legislation that would settle the Yankeetown litigation. In Yankeetown v. DEO (37 2011 CA 002036), Yankeetown asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional.

As readers of this blog will recall, the parties reached a settlement agreement that required them to use their best efforts to pass legislation that would cure Yankeetown's main issue and allow it to continue to use its referendum process for its comprehensive plan amendments. Language that appears to meet the requirements of the settlement agreement has been passed in both chambers, although the chambers will have to settle the other diferences.

House Bill 7081 passed in the House on February 16th. Senate Bill 440 passed in the Senate yesterday. The bill was sponsored by Senator Bennett, one of the principal authors of the Community Planning Act. The relevant language in the bill, with additions underlined, reads:

163.3167(8) An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments, may be retained and implemented.

The Governor will still have to approve this language for it to become law. Judging by the strong support in both chambers for it, it seems likely that he will. The status of his action on bills is here. Then the parties would have to go back before the court to finish the settlement process. Stay tuned for this and other legislative updates. I'll be watching as the 2012 legislative session winds down.

Fourth Quarter 2011: Recent Florida Environmental and Land Use Case Law

Continuing my Florida environmental and land use case law updates, I summarized the cases below with my co-author in the latest newsletter of the Florida Bar's Environmental and Land Use Law Section.

• Miami-Dade Cnty. v. Torbert, 
• 36 Fla. L. Weekly D1674a 
• (Fla. 3d 
• DCA Aug. 3, 2011), holding that plat restrictions must be incorporated and reference into a deed to be valid.
• St. Johns River Water Mgmt. Dist. v. Molica, 2011 WL 3627412 (Fla. 5th DCA Aug. 19, 2011), declaring that Water Management Districts have the power to create an administrative rule requiring environmental resource permits (ERP) for dredging and filling of surface water and wetlands.
• Bush v. Mexico Beach, 2011 WL 4345169 (Fla. 1st DCA Aug. 31, 2011), confirming previous case law requiring comprehensive plan consistency challenges after a local government hearing to be brought in de novo proceedings in circuit court, but allowing challenges to the hearing based on other reasons to be brought as certiorari proceedings.
• Mickel v. Norton, 2011 WL 4415353 (Fla. 2d DCA Sept. 23, 2011), holding that property owners do not have a riparian right to an unobstructed view of the water body unless the property directly borders it.
• 1000 Friends of Fla., Inc. v. Palm Beach Cnty., 2011 WL 4577746 (Fla. 4th DCA Oct. 5, 2011), stating that comprehensive plans are to be interpreted using the same rules of construction as statutes.
• West Palm Beach v. Roberts, 2011 WL 4949795 (Fla. 4th DCA Oct. 19, 2011), affirming a decision holding a city liable for inverse condemnation where it demolished a structure without giving the owner adequate notice.
• Pembroke Ctr., LLC v. Fla. Dep’t of Transp., 64 So. 3d 737 (Fla. 4th DCA 2011), denying an inverse condemnation claim where there were mere "planning activities" but no loss of activities.

You can detailed description in this quarter's newsletter. Please email me new cases we should review.

New Legislation May Allow Yankeetown to Keep Its Referedum Requirement

New comprehensive planning legislation that may interest my readers has been filed. For those who are not as familiar with comprehensive plans, the legislative staff analysis of one the bills that have been filed explains them briefly:

The Local Government Comprehensive Planning and Land Development Regulation Act (the Act), also known as Florida’s Growth Management Act, was adopted by the 1985 Legislature. The Act requires all of Florida’s counties and municipalities to adopt local government comprehensive plans that guide future growth and development. Comprehensive plans contain chapters or “elements” that address future land use, housing, transportation, water supply, drainage, potable water, natural groundwater recharge, coastal management, conservation, recreation and open space, intergovernmental coordination, capital improvements, and public schools. The state land planning agency that administers these provisions is the Department of Economic Opportunity. 

A local government may choose to amend its comprehensive plan for a host of reasons. It may wish to: expand, contract, accommodate proposed job creation projects or housing developments, or change the direction and character of growth. Some comprehensive plan amendments are initiated by landowners or developers, but all must be approved by the local government. The first step in the process is for the local government to develop a comprehensive plan amendment proposal. Public participation is a critical part of the comprehensive planning process. Citizens often want to be a part of planning their communities and landowners need to be aware of changes that could affect their property. A local government considering a plan amendment must hold at least two advertised public hearings on the proposed comprehensive plan or plan amendment. Notice must be published in a newspaper of general paid circulation in the jurisdiction of interest. The procedure for transmittal of a proposed or adopted comprehensive plan amendment requires the affirmative vote of a majority of the members of the governing body present at the hearing. 

As you may recall, as a part of last year's landmark growth management legislation, the Community Planning Act, ch. 2011-139, Laws of Fla. (HB 7207), prohibited referenda requirements. Yankeetown's charter requires it to hold a referendum for approval of any comprehensive plan changes, and Yankeetown wanted to keep the requirement. Consequently, Yankeetown filed a lawsuit alleging that the Community Planning Act was unconstitutional. St. Pete Beach later intervened in the case to protect its own referendum that had eliminated its referendum requirement (after years of court battles), and the state moved to dismiss Yankeetown's complaint.

On November 9, while the state's motion to dismiss was still pending, the parties filed a joint motion and settlement. The motion, which was approved by the court, holds the litigation while all parties use their best efforts to pass legislation to amend section 163.3167(8), Florida Statutes. The proposed legislation would allow Yankeetown's referendum requirement to stand, while banning other local governments from taking it up. If the required legislation is not passed, the litigation will likely continue.

Senator Mike Bennett has already filed the implementing legislation, SB 842. He was one of the principal authors of the Community Planning Act. The relevant language in the bill, with additions underlined, reads:

163.3167(8) An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments, may be retained and implemented.

Note that the language is quite strict: not only must local governments have already adopted their referendum requirements, but the requirements must also have adopted them as part of their charters. Charters are generally much more difficult to amend than simply passing an ordinance.

SB 440, also filed by Senator Bennett, contains the same language and appears to be moving through the committee structure even faster than SB 842. There is not yet a House companion bill.

For those interested, you can track SB 842 and SB 440 online.

St. Pete Beach intervenes in Constitutional Challenge to Community Planning Act

Another city has piled onto Yankeetown's constitutional challenge to the Community Planning Act (HB 7207, signed into law as ch. 2011-139, Laws of Fla.). Recall that Yankeetown challenged the Community Planning Act on grounds that it unconstitutionally delegates power to the State Land Planning Agency to define certain terms. Yankeetown also challenged the Act for more technical reasons, including that it was adopted in contravention of the single subject requirement and that it was read by a misleading and inaccurate title.

The twist is that the new local government has moved to intervene as a defendant. In late August, St. Pete Beach moved to intervene in Yankeetown v. DCA (37 2011 CA 002036). If its motion succeeds, it will enter the case aligned with the State Land Planning Agency and possibly the State. St. Pete Beach would then be opposed to Yankeetown. In this case, St. Pete Beach claims an interest in the action through an adopted plan amendment that would be uncertain if the act were struck down. Section 76 of the Act states:

A comprehensive plan amendment adopted pursuant to s. 163.32465, Florida Statutes, subject to voter referendum by local charter, and found in compliance before the effective date of this act, may be readopted by ordinance, shall become effective upon approval by the local government, and is not subject to review or challenge pursuant to the provisions of s. 163.32465 or s. 163.3184, Florida Statutes.

St. Pete Beach's motion to intervene doesn't tip its hand beyond showing the city is clearly interested in the outcome of the case. However, the backstory hints at the city's intentions. St. Pete Beach, readers will remember, formerly had a referendum requirement similar to sought by advocates of Hometown Democracy. It's now embroiled in even more lawsuits - the most recent seeks to overturn the city's referendum that eliminated its comprehensive plan referenda requirement and to overturn the city's reinstatement of a comprehensive plan that was invalidated by a circuit court judge.

We should see more filings in the case soon.

Yankeetown Files Complaint to Declare Community Planning Act Unconstitutional

Well, that didn't take long.

Tiny Yankeetown, with a population of less than a 1,000, has challenged HB 7207, this session's landmark growth management overhaul. I've written several times about the Community Planning Act. The Second Judicial Circuit has labeled the case as high profile, which means the docket is available online. I'll be following it to provide updates to all who are interested. Yankeetown filed an expedited complaint on August 1st and an amended complaint on August 8th.

In Yankeetown v. DCA (37 2011 CA 002036), Yankeetown requests that HB 7207 (ch. 2011-139, Laws of Fla.), be declared unconstitutional because it:

1. contains more than one subject, was adopted in violation of the single subject rule, and was read by a misleading and inaccurate title; and because it
2. contains an unconstitutional delegation, in violation of the non-delegation doctrine, to the State Land Planning Agency to define the vague terms "important state resources and facilities" and "important regional resources and facilities."

Yankeetown also seeks a declaratory judgment that it still apply its referenda provisions, requiring voters to approve all comprensive land use changes affecting more than five parcels. because they existed before HB 7207 was passed. The amended complaint adds allegations concerning the title of the bill and whether it was enacted properly.

Because HB 7207 went into effect upon being signed by Governor Scott in early June, local governments around Florida had to learn its provisions quickly. They must continue implementing the Community Planning Act, despite this challenge. If Yankeetown is successful, Florida land use and growth management law could get very messy, very quickly.

A Professional Planner's Take on the Community Planning Act

The president of the Florida Chapter of the American Planning Association, Merle Bishop, FAICP, recently responded to an article by St. Pete Times reporter Craig Pittman. The article  appeared in the July 2011 issue of Planning, the American Planning Association's magazine. Pittman's article is reproduced here. That blog shows that Pittman's article has given many a mistaken impression of what has happened to land use planning and growth management in Florida. 

I haven't been able to find a copy of Mr. Bishop's letter online so it is reproduced below. It gives some perspective on how planning professionals are dealing with the Community Planning Act and HB 7207.

Craig,

 

I was somewhat disappointed in reading your article in the July 2011 issue of Planning, titled “Florida Kills Growth Management Act.” I understand that the article appeared in the “News Briefs” section of the magazine which does not provide sufficient column space to fully explain a complex topic as House Bill (HB) 7207 and the recent changes to Florida’s Growth Management Act. Your article certainly offers a very disheartening viewpoint regarding the recent legislative changes in Florida. Especially, to any reader who has not followed the legislative process, much less read HB 7207. I say this because it is my belief, which I believe is shared by many of my planning colleagues, that Florida did not kill the Growth Management Act. I understand the argument that changes to the role of DCA as a strong, centralized state planning agency in the oversight and approval process of Comprehensive Plans weakens the overall planning effort in Florida. However, I also recognize that there is a lot of good planning that is taking place at the local level and does not need a “top down” planning structure or state oversight to be successful. In a sense, I believe it boils down to some people seeing the glass as half empty while others see it as half full.

 

Most of the planning requirements of the Growth Management Act remain unchanged and, while Rule 9J-5 was repelled, several of the provisions of the rule have been incorporated into the Growth Management Act (Chapter 163, F.S.) In fact, if you step back and take a look at the new law in its totality, there remains a decent planning process, that if followed, will provide local governments the necessary tools to guide their futures. Your article states that the new legislation bans cities and counties from imposing impact fees on non-residential development for two years. This is simply not the case. This provision was discussed earlier in the legislative process, but not included in the final, adopted version of the legislation.

 

Certainly, the statutory changes did not diminish the importance of local governments ability to make sound decisions that are based on plans developed over decades of hard work, public investment and public participation. The big question, in light of the changes, is how will local governments respond to those changes? Will they remove concurrency for transportation, schools and park facilities? Will they remove their School Facilities Element from their Comprehensive Plan? Will they make bad planning decisions that result in sprawl and adverse environmental impacts? Will citizen involvement in the planning process and public opinion have any influence or bearing on local decisions and choices? I guess these questions remain to be answered as we move into future with the changes in HB 7207. It can be argued that planning requirements contained in state law and rule are not essential to achieve good planning. In fact, changes in these requirements can present new opportunities for local governments to be proactive and creative in making planning decisions and securing a better future for existing and future populations. As a planning profession, I believe it is critical that planners in the state provide leadership in identifying those creative and innovative solutions.

 

One of the more frustrating aspects of the legislative debate, was that it appeared to focus heavily on comprehensive plans as a regulatory impediment to economic development. Seemingly lost in the debate is the strong linkage between good planning and economic development, including job creation. A comprehensive plan is not an end unto itself but it is a tool to guide a community towards economically vibrant, sustainable and active communities. It is my opinion that most local communities throughout Florida “get this” and will “stay the course” by maintaining concurrency, including a school facilities element, as part of their plans. Additionally, they will “step up” and make good planning decisions without having DCA as a “backstop” for bad planning decisions. Craig, I hope that you take the time and opportunity to speak with other planners in leadership roles around the state to get different perspectives from professionals who work with the growth management act and the recent changes on a daily basis. I realize that planners don’t make the decisions, elected official do and when local politics are involved, anything can happen. I acknowledge that some bad choices and decisions will occur. However, many of the elected officials that I know sincerely want to do the right thing and understand the significance of sound planning and a following a good plan for the future of their community.

 

In closing, I encourage you to point out that there is still a planning requirement in place in Florida and local governments are now more accountable to existing and future populations to make good decisions based on their plans developed over the years. I believe that local citizens also have a very important role in the new planning structure for Florida. They should be encouraged to become educated and more aware of their community’s planning efforts and to get involved – participate in local planning and visioning efforts to provide guidance to appointed planning and zoning boards and local elected officials. Planning is definitely alive and well in the state. Governments have taken on different roles and local governments are capable of implementing the plans and vision of their local community.

 

Thanks,

Merle

 

Merle H. Bishop, FAICP

APA Florida President