DCA files motion to dismiss Community Planning Act legislation

I've been following the Yankeetown v. DCA (37 2011 CA 002036) litigation. So far, I've written on Yankeetown's complaint alleging that the Community Planning Act is unconstitutional and on St. Pete Beach's motion to intervene in the litigation against Yankeetown.

The Department of Community Affairs was recently substituted in the litigation by its new administrative iteration, the Department  of Economic Opportunity. Just before that, DCA filed a motion to dismiss Yankeetown's complaint. DCA argues that officers of the state and state agencies must presume that laws affecting their duties are valid. Because the validity of the law must be assumed, the public officer is not given standing to challenge the law. That is, public officers are expected to uphold their office, not fight about it. Because this line of case law has been applied previously to both local governments and to growth management law, DCA argues, it should applied in this case.

If Yankeetown responds to the motion in writing before the hearing, I will post a summary here.

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

This post continues my series of case law updates for those interested in recent environmental and land use cases in Florida. Once again, these cases come from the case law update that I coauthor in the newsletter of the Environmental and Land Use Law Section of the Florida Bar. Below are the cases we reviewed this quarter.

• Walthour v. Malibu Lodging Investments, LLC, 2011 WL 2135594 (Fla. 3d DCA June 1, 2011), a city ordinance with no variance provision is constitutional as long as it does not create a “unique hardship” for the landowner.
• Wilson v. Palm Beach Cnty., 62 So. 3d (Fla. 4th DCA June 15, 2011), holding that the Right to Farm Act does not prohibit the enforcement of local government ordinances regulating farming activities adopted prior to June 2000 (although this holding was likely reversed by Ch. 2011-007, Laws of Fla.)
• Pembroke Ctr., LLC v. Dep’t of Transp., 2011 WL 2555569 (Fla. 4th DCA June 29, 2011), not allowing an inverse condemnation claim where the government is merely planning for future events and access is not lost.
• Heritage 5, LLC v. Estrada, 2011 WL 2848664 (Fla. 4th DCA July 20, 2011), applying the reasonable use rule to man-made drainage schemes that further natural flows.
• Highwoods DLF EOLA, LLC v. Condo Dev., LLC, 51 So. 3d 570 (Fla. 5th DCA 2010), establishing in potential conflict with the 2d DCA that quasi-judicial proceeding participants cannot be barred from subsequent certiorari proceedings. 

You can find more details in this quarter's newsletter. Please email me as you become aware of cases we should review.

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.

New Institute in Florida Pledges to Protect Property Rights

The Pacific Legal Foundation has created the Wade L. Hopping Institute for Private Property Rights. The Institute will fight to protect property rights through education and litigation. It will work, in part, through a network of pro bono attorneys to fight government abuse of property rights. It's a fitting tribute to Justice Hopping, with whom I had the privilege of working for at the firm he founded, Hopping Green & Sams.


The Institute already has environmental journalists and nonprofits worried. Their hand-wringing shows how much the Foundation's work is needed. Private property rights are about "individual autonomy and the enjoyment of liberty." But for folks like Monica Reimer of Earthjustice, private property rights can be reduced to nuisance claims. Ms. Reimer believes that growth management and environmental laws "were all intended to protect private property rights." Really? Those laws may have been intended, ostensibly, to protect the public health and safety. They may have intended to recognize "public environmental rights." Yet they have never been said to have been intended, first and foremost, to protect private property rights.


It's a testament to American's support for free enterprise that even environmentalists have hijacked the rhetoric of property rights advocates.

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

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.