Planning in the Courts
Nancy Stroud, FAICP, J.D. Alicia Gonzalez, Esq.
Nancy E. Stroud, FAICP, JD
Nancy practices growth management law from her office in Boca Raton as Nancy E. Stroud, P.A. She regularly represents local governments as special counsel for land use issues, including special projects such as writing land development regulations, reviewing large development proposals, and comprehensive planning. She is expert in quasi-judicial hearing procedures and regularly assists elected bodies and planning boards, or local government staff. She is an experienced litigator and appellate lawyer.
Nancy’s awards include the 2011 American Planning Association, Florida Chapter, Award for Distinguished Contribution to the Chapter; 2011 American Planning Association for National Planning Excellence Award for Best Practice (as part of the Miami 21 team); and the 2010 Richard Dreihaus Form Based Code Award (Miami 21 code). She is a Fellow of the American Institute of Certified Planners.
Scope of Consistency Challenges
Imhof v. Walton County, 328 So. 3d 32 (Fla. 1st DCA 2021)
APA Florida and APA national filed an amicus curiae brief in support of citizens and environmental nonprofit groups.
Case involved a PUD approval by Walton County that the appellants argued was inconsistent with multiple comprehensive plan policies including density, intensity, buffers, setback and sidewalk objectives and policies.
Circuit court in Walton County found that the citizens and nonprofits did not have standing to bring a consistency challenge under Section 163.3215(3), Florida Statutes, and that even if they did, the statute only allows challenge to plan components concerning use, density or intensity of use.
APA brief focused not on the development, but the narrow reading by the circuit court of the breadth of consistency challenges.
Scope of Consistency Challenges
Imhof v. Walton County, 328 So. 3d 32 (Fla. 1st DCA 2021), cont.
APA addressed the importance of the consistency mandate, and its enforcement by aggrieved and adversely affected persons, to ensure that the local government’s comprehensive plan continues to be an effective primary foundation for local land development decisions, providing predictability for public and private investments in the community and the polestar for local implementing regulations.
Imhof court rejected the narrow reading and agreed with the appellants and APA. Statutory challenge can consider all Plan policies and objectives.
Imhof court specifically rejected the interpretation by the Second District Court of Appeal in Heine v. Lee County, 221 So.3d 1254 (Fla. 2d DCA 2017), which held that consistency mandate is limited to only use, density and intensity inconsistencies. Undertook a grammatical reading; statutory interpretation.
Scope of Consistency Challenges
Section 163.3215(3), Florida Statutes:
Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s.
163.3215, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan …
Scope of Consistency Challenges
Imhof v. Walton County, 328 So. 3d 32 (Fla. 1st DCA 2021), cont.
Second District had a recent opportunity to revisit its narrow interpretation in Conservancy of Sw. Fla., Inc. v. Collier Cty., 352 So. 3d 481 (Fla. 2d. DCA 2022) (December 2, 2022).
Conservancy challenged Collier County approval of nearly thousand-acre mixed-use development in the Rural Lands Stewardship Area (rural east county) “Rivergrass Village” — as inconsistent with various comprehensive plan policies, including traffic and fiscal impact policies. Case was dismissed in circuit court on summary judgment, i.e. without an evidentiary trial.
Second District reiterated that Heine still was the correct interpretation of the statute. Rejected Imhof with warring grammatical and statutory construction explanation.
Scope of Consistency Challenges
Imhof v. Walton County, 328 So. 3d 32 (Fla. 1st DCA 2021), cont.
However, the Court found that traffic impact and fiscal neutrality provisions of the Comprehensive Plan “implicated the ‘intensity of use’ on this property under the GMP and, as such, could appropriately be made the subject of a section 163.3215 challenge.”
Court refers to the statutory definition of intensity:
“an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on, or below ground; the measurement of the use of or demand on natural resources; and the measurement of the use of or demand on facilities and services.”
Court found that the policies required public facilitieThe casepwas act assessmethe nts and thus were “intensity” policies. Case remanded to circuit court so that evidence can be developed in trial.
Court-certified conflict among districts to request Florida Supreme Court resolution
Scope of Consistency Challenges
HB 359
163.3215 Standing to enforce local comprehensive plans through development orders.—
(3) Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, on the basis that the development order which materially alters the use or density or intensity of use on a particular piece of property rendering it which is not consistent with the comprehensive plan adopted under this part.
Administration Commission Review of Compliance
Tropical Audubon Society et al v. Miami-Dade County and Florida Administration Commission, pending before the Third District Court of Appeal
APA Florida has entered an amicus curiae brief in support of Appellants to argue that:
Comprehensive plan amendments must be supported by adequate facts as a matter of statute and as a requisite of the integrity of the planning process
Fact finding is especially critical under the statute when protecting important state resource and facilities such as the Everglades ecosystem.
Administration Commission Review of Compliance
Background:
County approved a comprehensive plan amendment to allow construction of a proposed extension of the Dolphin Expressway (Tollway) that would pass through an area that is subject to the Everglades Restoration Plan and primarily outside of the Urban Development Boundary.
State DEP and the SFWMD objected to the amendment
Property owners and Tropical Audubon Society brought a compliance challenge at DOAH. The ALJ found the amendment was not based on relevant and appropriate data and analysis and was internally inconsistent with the County Plan.
The recommended order to find non-compliance was hearing by the Administration Commission (Governor and Cabinet) in June 2021.
Administration Commission Review of Compliance
Background, cont.:
The Administration Commission rejected all of the ALJ’s substantial finding of fact, and recommended conclusions of law and approved the amendment.
APA Florida Policy Positions
Everglades Restoration: APA Florida supports Everglades Restoration and, to that end, encourages affected local governments to incorporate the needs of this restoration program into their land use decisions and comprehensive planning processes.
APA Florida supports improved regional integrated planning for jobs creation and economic development, integrated and efficient transportation systems, and environmental resource management to create a more efficient and strategic selection of infrastructure improvements and the associated allocation of fiscal resources.
Administration Commission Review of Compliance
Arguments:
The statutory requirements for appropriate data and analysis are extensive and meaningful and require respect for professional expertise.
State agency review is built into the review process because of agency expertise
The statute requires plan amendments to be based on relevant and appropriate data and analysis, and describes minimum data and analysis required (carried over from Rule 9J-5). The amendments must be consistent with the data and analysis requirements in order to be found in compliance.
The statute requires this because of the key role of comprehensive plan as the “Constitution for land use”.
The Legislature’s adoption of §120.57, Florida Statutes, as the process for a plan challenge demonstrates the value it placed on facts in the compliance determination process.
Administration Commission Review of Compliance
Arguments:
The use and necessity for appropriate supporting data and analysis is standard and necessary professional planning practice. Facts matter.
The Community Planning Act requires special attention to important state resources such as the Everglades Protection Area, which was not adequately recognized by the Final Order: Sec. 163.3161(3). It is the intent of this act to focus the state role in managing growth under this act to protecting the functions of important state resources and facilities.
The recognition in the Florida Constitution, the Florida Statutes and the federal/state partnership in the Comprehensive Everglades Restoration Plan make it even more important to get the facts right.
Florida Keys Comprehensive Plan Compliance
Mattino v. City of Marathon, 345 So. 2d 939 (Fla. 3d DCA 2022)
Facts
Islamorada and Marathon by statute are established within the Florida Keys Area of Critical State Concern – 380.0552, Fla. Stat the “Florida Keys Area Protection Act.”
380.0552(4)(e)2 (2006) requires plans to comply with the protection of “public safety and welfare in the event of a natural disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 24 hours.
Clearance time must be determined “by a hurricane evacuation study conducted in accordance with a professionally accepted methodology and approved by the state land planning agency.”
Evacuation time determines how many residential building permits can be granted over a 10-year period — a “carrying capacity” evaluation
Florida Keys Comprehensive Plan Compliance
Facts, cont.
Florida Keys municipalities amended their plans to establish hurricane evacuation plans based on clearance times established for two phases. First phase would evacuate non-residents and certain permanent residents (mobile home, military, special needs, affordable housing units) in a 24-hour period, followed by evacuation of remaining permanent residents (site-built homes)in the next 24-hour period
Plan amendments were based on a model developed by interlocal effort beginning in 2012, and a memorandum of understanding with DEO and the Division of Emergency Management. Plans also implemented an affordable housing initiative, reserving units as deed-restricted workforce housing.
Mattino v. City of Marathon, 345 So. 2d 939 (Fla. 3d DCA 2022)
Florida Keys Comprehensive Plan Compliance
Facts, cont.
Certain permanent residents brought administrative challenges to the plan amendments of all cities, asserting violation of the statutory 24-hour evacuation time for permanent residents. The ALJ issued a recommended order finding compliance, which DEO adopted. Decision
On appeal to the District Court of Appeal, the court found that the unambiguous statutory language requires the evacuation of permanent residents of no more than 24 hours. It does not contemplate two 24-hour periods.
Mattino v. City of Marathon, 345 So. 2d 939 (Fla. 3d DCA 2022)Florida Keys Comprehensive Plan Compliance
Mattino v. City of Marathon, 345 So. 2d 939 (Fla. 3d DCA 2022)
Decision, cont.
On appeal to the District Court of Appeal, the court found that the unambiguous statutory language requires the evacuation of permanent residents of no more than 24 hours. It does not contemplate two 24-hour periods.
Rejected arguments that the court should defer to administrative agencies. Courts historically have done that, but the 2018 constitutional amendment Art. V, Sec. 21, prohibited such deference:
“In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.”
Florida Keys Comprehensive Plan Compliance
“We are keenly aware of the well-intended objectives and meritorious goals embodied within the Comprehensive Plan Amendments of Marathon and Islamorada. We further acknowledge the substantial challenge those cities face in attempting to balance the competing interests at stake. Nevertheless, we ‘do not have the authority to ignore plain and unambiguous language under the guise of interpretation.’”
City of Key West, an area of critical state concern designated administratively, is not subject to the statutory section. However, the Court also finds without discussion that the evacuation plan “is not supported by relevant and appropriate data and analysis.”
Mattino v. City of Marathon, 345 So. 2d 939 (Fla. 3d DCA 2022)
Decision, cont.
BERT HARRIS ACT CASE UPDATE
Section 70.001, Florida Statutes
Beach, 334 So. 3d 332 (Fla. 4th DCA 2022)
Plaintiffs, DHBH Atlantic LLC and 60 ½ LLC own four lots in Downtown Delray Beach.
Pre-2015: buildings could be any number of stories and max height of 45 feet.
Post-2015: City Ordinance limited stories to max of 3 and height to max of 38 feet.
2018:
City adopts 2018 Ordinance, replacing 2015 Ordinance, but not changing height restriction.
City sends a notice, pursuant to Section 70.001(11)(a)(1)(a), Fla. Stat. to all property owners that were subject to the 2018 Ordinance Height Restriction advising that they have a year to make a claim under the Harris Act.
A few days before the expiration of the year: DHBH and 60 ½ made a joint Bert Harris Act claim. The claim:
Asserts that prior to 2015 Ordinance, they could have developed their properties jointly with a 5 story hotel, but due to the 2015 Ordinance that is no longer possible leading to a damage of $8,400,000
Date of the Appraisal was as of February 24, 2015
City moved to dismiss the Complaint because the appraisal was defective based on two issues:
1. It incorrectly valued the properties of DHBH and 60 ½ as one property even though the two are separate entities;
2. It incorrectly valued the properties as of enactment of the 2015 Ordinance, not the 2018 Ordinance.
Trial Court granted the City’s Motion to Dismiss the Complaint, with prejudice, because
DHBH Atlantic LLC v. City of Delray
60 ½ LLC Property
DHBH Atlantic LLC Property
DHBH
Atlantic LLC v. City of Delray Beach, 334 So. 3d 332 (Fla. 4th DCA 2022)
Appellate Court affirmed because
Property owners cannot combine two separately owned properties for purposes of making a claim under the Act.
The appraisal was outdated. It had to value the difference in fair market value as of the enactment of the 2018 Ordinance; not the 2015 Ordinance, because the claim ripened when the City sent the notice in 2018 under the 2018 Ordinance.
DHBH Lessons for Land Planners
Notice under Section 70.001(11)(a)1, Florida Statutes:
Generally a good idea for a government client because it starts the time running for claims to expire.
For property owner clients, move quickly if you receive a notice like this
If an Ordinance impacting property is amended, make sure you are operating under the correct ordinance if your on the property owner’s side.
Be mindful of who owns separate properties when assisting with a Bert Harris Act claim.
City of Homestead v. United States, 346 So. 3d 1205 (Fla. 3d DCA 2022)
Section 70.001(4)(c), Florida Statutes, permits a government entity to settle a Bert Harris Act claim before the property owner files suit by providing relief from the offending regulation.
Any such settlement has to:
Protect the public interest;
If it has the affect of contravening existing law, the government must file an action in circuit court for approval of the settlement.
§70.001(4)(d), Fla. Stat.
City of Homestead v. United States, 346 So. 3d 1205 (Fla. 3d DCA 2022)
City of Homestead and property owner that made a claim under the Bert Harris Act entered into a settlement agreement that was approved at a public meeting.
United States (interested third party) appealed the decision to the MiamiDade County appellate court as if the City’s decision was quasi-judicial.
The City and property owner sought a writ of prohibition from the second-tier appellate court (4th DCA) preventing the United States action altogether because the City’s action was quasi-legislative.
The appellate court agreed and entered a writ of prohibition.
Homestead Lessons for Land Planners
Settlements under the Bert Harris Act are quasi-legislative even if the relief provided is something that is usually quasi-judicial (such as a variance).
The only challenge to a quasi-legislative act is for a trial court to determine in an action for declaratory or injunctive relief whether the action taken was arbitrary, capricious, confiscatory or violative of constitutional guarantees.
If a settlement of a Bert Harris Act claim is reached, and it is contrary to existing law, the government and property owners have to seek approval of the settlement in a trial court where they must prove that the settlement:
Protects the public interest; and
Is necessary to prevent the government regulation from inordinately burdening the private property.
Karenza Apartments, LLP v. City of Miami, 347 So. 3d 431 (Fla.
3d DCA 2022), review denied, SC22-914, 2022 WL 17175593 (Fla. Nov. 23, 2022)
City of Miami Mural Ordinance zones properties within a certain area to house murals.
From 2013 to 2017, Karenza property actually housed a mural deriving significant rental income from it.
In 2015, Karenza spent thousands to build out a roof top structure for mural display.
In 2016, Karenza’s lease with the mural owner ended. The mural owner holds the actual permit to display the mural.
In 2017, the City enacted an ordinance excluding the Karenza property from the area zoned for murals.
Karenza ultimately filed suit against the City for an inordinate burden under the Bert Harris Act.
Karenza Apartments,
LLP v. City of Miami, 347 So. 3d 431 (Fla.
3d DCA 2022), review denied, SC22-914, 2022 WL 17175593 (Fla. Nov. 23, 2022)
Trial Court granted the City’s Motion for Summary Judgment on the basis that:
Mural permits specifically provide that they do not create a vested right; so
Existing temporary use did not create a vested right in Karenza; and
The new ordinance did not inordinately burden Karenza’s property.
Third DCA reversed because:
The mural permit is separate from the zoning of Karenza’s property.
The Bert Harris Act claim must be determined by considering the property owner’s reasonable, investment backed expectations based on the then-existing land use and physical conditions of the property.
Disputed facts remain as to whether :
Karenza had reasonable, investment backed expectation to use its property to host a mural;
As a result the City’s ordinance disproportionately burdened Karenza’s property; and
Damages resulted from the burden.
Karenza Lessons for Land Planners
Land use, zoning, and physical characteristics of the property will be the main determinant of “reasonable, investment-backed expectations” – i.e., physically possible and legally permissible uses.
A large expenditure of money in reliance on existing regulations is a good sign that the property owner probably has a colorable argument of “reasonable, investment-backed expectations.”
A side note, not indicated by the appellate opinion: the uncertainty of getting a permittee to lease the property may speak more to damages than to reasonable, investment-backed expectations.
Brevard Cnty.
v. Waters Mark
Dev. Enterprises,
LC, 350 So. 3d 395 (Fla. 5th DCA 2022)
In 2006, Water Mark purchased property in Brevard County to develop a 90Unit Residential subdivision on 97 acres of property – a permissible use under the Comprehensive Plan at the time.
Water Mark needed approval from the St. Johns River Water Management District for the development. It applied but left important issues unresolved ultimately abandoning the application.
In 2009, the County adopted Ordinance 09-21, which amended the Comp. Plan to impose lower densities on the property and surrounding land allowing only 1 RU/2.5 acres.
In 2012, Water Mark again applied to develop the property, but this time with an 84-unit subdivision on 97 acres.
In the pre-application comments, the County disapproved of the application because it did not comply with the new density restriction.
Brevard Cnty. v. Waters Mark Dev. Enterprises, LC, 350 So. 3d 395 (Fla. 5th DCA 2022)
Based on the County’s comment, Water Mark made a claim under the Bert Harris Act and ultimately filed suit.
The County defended, in part, by claiming that other regulatory restrictions on the property (other than the County Comp Plan) prevented Water Mark’s proposed development.
The trial court entered summary judgment in favor of Water Mark, and the County appealed, claiming there is still a genuine issue of material fact as to whether the application of the density limitation actually inordinately burdened the Property.
The appellate Court agreed.
Waters Mark Lessons for Land Planners
The Act requires that the property owner prove that the offending regulation actually caused its damage.
Land planners should pay close attention to other existing regulations that may have prevented the development.
Jamieson v. Town of Fort Myers Beach, 48 Fla. L. Weekly D35 (Fla. 2d DCA 2022)
1. History
2. Jamieson I
3. Jamieson II
History of the Jamieson Property
Subject Property consists of two parcels of land consisting of 7 acres subdivided into 40 platted lots.
1919: Subject Property is subdivided into 40 platted lots.
Pre-1995: Subject Property is under Lee County jurisdiction.
Post-1995: Town is incorporated.
1998: Town adopts a comprehensive plan, including future land use map designated the Subject Property as wetlands with a permitted residential density of 1RU/20 acres. No study is done to support he wetland designation.
2002: Jamieson purchased the Subject Property.
2003: Town adopts a code provision providing that lots designated as wetlands cannot be developed by any structure even if they are subject to a minimum use determination (MUD), which the Subject Property was.
2010: Jamieson petitions the SFWMD for a determination of extent of wetlands on the property. The SFWMD determines that only 61% if the property constitutes wetlands.
History of the Jamieson Property (cont.)
2011: Jamieson petitioned the Town to change the wetlands designation based on the SFWMD findings.
2012: Jamieson applies for an MUD, which was denied based on the fact that the property consisted of wetlands. Jamieson appealed, and the appeal was held in abeyance pending Jamieson applying for a Comp. Plan amendment.
2013: Jamieson applies for a small-scale Comp. Plan amendment seeking to transfer the development rights from the Subject Property to another property he owned. Despite a favorable staff recommendation, the application was denied.
2014: On appeal to the Town Council, the MUD is granted. Still development is not permitted because it would be contrary to the existing Comp. Plan.
2015: Jamieson applies for a variance., which is denied because use variances are not permitted under the Town Code.
2016: Jamieson submits a BJH claim to the Town.
Town offers to settle by administratively removing the wetland designations on 3 platted lots if Jamieson waives development rights on the remaining 37 lots. Offer was contingent upon Town Council approval.
Jamieson rejected the offer and filed suit for inverse condemnation (partial and whole takes); and for violation of the Bert Harris Act.
Jamieson I: Jamieson v. Town of Fort Myers
Beach, 292 So. 3d 880 (Fla. 2d DCA 2020)
The trial court granted the Town’s Motion for Summary Judgment because:
Count I (Total Taking Claim): Jamieson could not have a reasonable, investmentbacked expectation in developing the property because he purchased the property with the restrictions in place.
Counts II (Partial Taking Claim) and III (Bert Harris Act Claim): the claims were not ripe because Jamieson could still have applied for a comprehensive plan amendment to change the land use designation and/or the permissible density, but he did not.
Second DCA reversed the trial court’s decision to grant the Town’s Motion for Summary Judgment.
Jamieson I: Jamieson v. Town of Fort Myers
Beach, 292 So. 3d 880 (Fla. 2d DCA 2020)
Reasoning for the Second DCA opinion:
The United States Supreme Court case of Palazzolo v. Rhode Island, 533 U.S. 606 (2001), found that a property owner that purchased property with existing restrictions still could prove a takings claim. So, that fact alone could not be determinative.
As for ripeness, the Second DCA found that further applications would be futile particularly in light of the Town’s offer to settle the Bert Harris Act claim.
Jamieson II: Jamieson v. Town of Fort Myers
Beach, 48 Fla. L. Weekly D35 (Fla. 2d DCA 2022)
Back in the trial court. The Court the Town’s Motion for Summary Judgment as to all counts, again:
Whole Take (Count I): Court granted the Town’s motion for summary judgment because the Town’s counteroffer proved there was at least some remaining use.
Partial Take (Count II): Court granted the Town’s motion for summary judgment on the same basis as the Bert Harris Act claim.
Bert Harris Act Claim (Count III): Court granted the Town’s motion for summary judgment because it found that Jamieson did not have any existing use, vested right, or reasonable investment-backed expectation in developing the property because it was designated wetlands before purchase.
Note: The Town also argued that the claim was time barred because it was made well after the restrictions were applied to the property. The trial court did not rule on this issue.
Jamieson II: Jamieson v. Town of Fort Myers
Beach, 48 Fla. L. Weekly D35 (Fla. 2d DCA 2022)
Jamieson II: the Second DCA reversed the trial court, again.
Whole Take (Count I):
Reversed because the settlement offer was contingent upon Town Council approval and that was not guaranteed necessarily. Either way, there remained an issue of fact.
Also determined that the trial court did not err in denying Jamieson’s motion, which was based on Jamieson claiming that the Town’s counteroffer eliminated all economically viable use on 37 of the platted lots.
Partial Taking Claim (Count II): Trial court relied on the same facts and conclusions used to grant summary judgment on the Harris Act Claim. This was error as the two actions are legally distinct. Fact issues remained.
Bert Harris Act Claim (Count III):
There may be merit to the argument that the claim is time-barred argument.
Issues of fact remained on whether there was an existing use and a reasonable, investment-backed expectations because despite the land use designation, the property was surrounded by other property zoned RM-2, which may classify as creating an existing use.
Jamieson II: Jamieson v. Town of Fort Myers
Beach, 48 Fla. L. Weekly D35 (Fla. 2d DCA 2022)
Jamieson II (cont.):
The appellate court mandated the trial court to hold a bench trial to decide the issues of fact.
Also held that the issues of whether there was a taking should be tried first. If no taking is found, then a trial should be held on the Bert Harris Act.
Dissent: thought that the Court erred in extending the Palazzalo holding to the Bert Harris Act claim because that was never decided in Jamieson I and Palazzalo shouldn’t apply to Bert Harris Act claims.
Jamieson II Lessons for Land Planners
Takings analysis is different from a Harris Act analysis.
§70.001(1), Fla. Stat: “[I]t is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or political entity in the state, as applied, unfairly affects real property.”
§70.001(9), Fla. Stat.: “This section provides a cause of action for governmental actions that may not rise to the level of a taking under the State Constitution of the United States Constitution.”)
Have to analyze the relevant parcel and potentially use alternate theories.