Planning in the Courts | Nancy Stroud, FAICP, JD & David Theriaque, Esq.

Planning in the Courts APA Florida 2024 Public Policy Workshop January 26, 2024 Nancy Stroud, FAICP, JD Nancy E. Stroud, P.A. Boca Raton, FL

Two Topics  The Florida Comprehensive Plan

Consistency Mandate

 Regulatory Taking – Shands v. City of

Marathon, 2023 Fla. App. LEXIS 3025 (Fla. 3d DCA 2023)

Consistency Mandate 

Established in the 1975 Local Government Comprehensive Planning Act:

Each local government in Florida must adopt a local comprehensive plan by 1979, all development permits and development regulations must be consistent with the plan or element, and regulations must be adopted to implement the plan.  Maintained in 1985 Local Government Comprehensive Planning and Land Development Regulation Act, adding citizen enforcement process with liberalized citizen standing and detailed content requirements for the plan.

Consistency Mandate A comprehensive plan is essentially "a constitution for all future development within the governmental boundary."

Machado v. Musgrove, 519 So. 2d 629, 632 (Fla. 3d DCA 1987).  Bd. of Cty. Com’rs. v. Snyder, 627 So. 2d 469 (Fla. 1993) --applied a standard of strict scrutiny to the plan consistency challenges. The Court explains in part why strict scrutiny is appropriate, saying “zoning decisions are too often ad hoc, sloppy and self-serving with welldefined adverse consequences without off-setting benefits.”

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Consistency Mandate 

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Dixon v. City of Jacksonville, 774 So. 2d 763, 764 (Fla. 1st DCA 2000) ("It is well established that a development 0rder shall be consistent with the government body's objectives, policies, land uses, etc., as provided in its comprehensive plan.")

Pinecrest Lakes, Ltd. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001) -- the court required new apartments to be torn down upon a complaint filed by a citizen, on the basis that the County had issued permits that were inconsistent with the comprehensive plan.

Consistency Mandate The Community Planning Act of 2011 leaves the consistency mandate intact.  Section 163.3215 (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. 163.3215, 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 . . . . 

Consistency Mandate Heine v. Lee County, 221 So. 3d 1254 (Fla. 2d DCA App. 2017) – using a “plain reading” of the statute, holding that a consistency challenge only allows disputes regarding use, density and intensity, and not other plan policies governing landscaping, mix of housing types for university studens and employees, etc.. 

Imhof v. Walton County, 328 So. 3d 32 (Fla. 1st DCA 2021) – disagrees with Heine court reading of the statute and allows challenge to address all comprehensive plan policies, as the statute is “designed to ensure the complete consistency between development and a local comprehensive plan.”

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Consistency Mandate 

Conservancy of SW Fla., Inc. v. Collier Cnty., 352 So. 3d 481 (Fla. 2d DCA 2022) •

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Conservancy brought consistency challenge to County’s approval of development known as Rivergrass Village, a 1000-acre mixed use development in rural land designated in the Growth Management Plan as the Rural Lands Stewardship Area Overlay (RLSA) Circuit court confined the scope of the challenge to claims alleging a material alteration to the use or intensity of use in Rivergrass that purportedly violated the comprehensive plan, pursuant to the Heine decision. It dismissed claims that the project violated traffic impacts and fiscal neutrality requirements of the plan, as not within the scope of the consistency statute.

Consistency Mandate 

Conservancy of SW Fla., Inc. v. Collier Cnty., 352 So. 3d 481 (Fla. 2d DCA 2022).

• RLSA Overlay Policies include: •

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4.14: No (development) shall be approved unless the capacity of the County collector or arterial roads(s) serving the (development) is demonstrated to be adequate.

4.16: An (approved development) shall have adequate infrastructure available to serve the proposed development, or such infrastructure must be provided concurrently with the demand.

4.18: The (development) will be planned and designed to be fiscally neutral or positive to Collier County at the horizon year on a public facilities impact assessment (which shall consider) the following public facilities and services: transportation , potable water, wastewater, irrigation water, stormwater management, sold waste, parks, law enforcement, and schools.

Consistency Mandate 

Conservancy of SW Fla., Inc. v. Collier Cnty., 352 So. 3d 481 (Fla. 2d DCA 2022) •

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The appellate court decided that the traffic and fiscal neutrality policies implicated the intensity of use on the property under the GMP, were within the statute’s purview, and remanded those issues to the circuit court to review.

The court pointed to the Florida Statute Section 163.3164(22) 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.”

Consistency Mandate 

2023 Florida legislature amends section 163.3215(3), Fla. Stat. to restrict legal challenges to consistency of development orders with the comprehensive plan to only issues of use or density or intensity of use, clearly intending to codify the Heine standard, and nullifying Imhof: “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 materially alters the use or density or intensity of use on a particular piece of property, which is rendering it not consistent with the comprehensive plan adopted under this part.”

Shands v. City of Marathon 

Facts 

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Shands Key is an undeveloped island in Marathon, purchased by the Shands family originally in 1956 and passed down to children Zoned under Monroe County as General Use. 1986 Monroe County comprehensive plan designated the island for Conservation; was zoned Conservation Offshore Island. City incorporated and continued the designation and zoning in 1999.

2004, Shands applied for and was denied a dock permit. Shands filed for a Beneficial Use Determination under the City Rate of Growth Ordinance. Special Master recommended that City grant a building permit for a single family home. City rejected the recommendation. Shands filed suit alleging a regulatory taking.

Shands v. City of Marathon 

Facts 

2008 appellate decision – the case is an “as applied” regulatory takings claim not barred by the statute of limitations; court noted that Transfer of Development Rights (TDRs) and Rate of Growth Ordinance (ROGO) points were available so as to preclude a “per se” (total) regulatory taking. The relevant review is under Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), a fact intensive review asking if there has been a substantial deprivation of economic use or reasonable investment-backed expectations, and character of the government action. (different panel of judges)

Shands v. City of Marathon 

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2008 appellate decision – the case is an “as applied” regulatory takings claim not barred by the statute of limitations; court noted that Transfer of Development Rights (TDRs) and Rate of Growth Ordinance (ROGO) points were available so as to preclude a “per se” (total) regulatory taking. The relevant review is under Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), a fact intensive review of multiple factors: extent of the diminution of value, the reasonable investment-backed expectations.

“The trial court must determine whether, and what, compensation is to be made under the circumstances, whether the City must grant TDRs equivalent to the buildable upland property or purchase the property outright.”

Shands v. City of Marathon 2019 appellate decision – overturns trial court grant of summary judgment to the City, finding that the trial court must establish the value of the ROGO points in order to make an “as applied” decision. Reaffirmed first appeal’s characterization of the case as NOT a facial taking case.  On remand, the trial court applied the Penn Central multifactor test and found Shands failed to establish a taking. City presented testimony about availability of TDRs and BPAS points.  Note: first and second Shands appeal had different appellate panels, unanimous decision. Third and most recent appeal – another appellate panel. 

Shands v. City of Marathon 

2023 appellate decision: “ The significance of TDRs in the regulatory takings matrix has been sharply debated. Some legal experts have opined that TDRs are irrelevant to the takings side of the equation because they do nothing to impact the nature and extent of the property interest taken by the government. Others have espoused the belief that TDRs necessarily mitigate the economic impact of regulation by infusing the property with value; therefore, they should be considered before determining whether the government has effectuated a taking.

The Supreme Court has yet to clarify this conundrum.”

The court analyzes the case under Lucas v. S. Carolina Coastal Council, 505 U.S. 1003 (1992), as a total taking.

Shands v. City of Marathon 

2023 appellate decision: The court analyzes the case under Lucas v. S. Carolina Coastal Council, 505 U.S. 1003 (1992), as a total taking. It holds that Lucas is not limited to facial takings (based simply on the passage of a regulation) but that is applies, as here, to a “per se as applied” taking claim. This is a new term in takings jurisprudence and a new type of analysis. Rejects earlier panel distinctions between Lucas and Penn Central.

The court finds the TDRs cannot be considered when finding a regulatory taking. It holds that TDRs are only relevant to how much compensation should be given when a total taking is found. The Shands established that City regulation deprived them of any use of the property, other than for beekeeping or personal comping.

(The analysis accepts Pacific Legal Foundation arguments long in the making.)

3HWA LAND HOLDINGS, LLC V. CITY OF BONITA SPRINGS, LEE COUNTY CIRCUIT COURT CASE NO. 21-CA-004285 (OCT. 20, 2023) • WHETHER A PROPOSED COMPREHENSIVE PLAN AMENDMENT REGARDING A 328-ACRE PARCEL OF LAND IS A LEGISLATIVE DECISION OR A QUASI-JUDICIAL DECISION. • WHAT IS THE STANDARD OF REVIEW FOR THE DENIAL OF A PROPOSED COMPREHENSIVE PLAN AMENDMENT? • WHETHER AN APPLICANT IS ENTITLED TO REBUTTAL TESTIMONY DURING THE PUBLIC HEARING ON A PROPOSED COMPREHENSIVE PLAN AMENDMENT. • WHETHER A CITY COUNCIL CAN RELY UPON PUBLIC COMMENT TO DENY A PROPOSED COMPREHENSIVE PLAN AMENDMENT. • WHETHER A CITY COUNCIL CAN DENY A PROPOSED COMPREHENSIVE PLAN AMENDMENT DUE TO TRAFFIC AND/OR TRANSPORTATION ISSUES.

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3HWA LAND HOLDINGS, LLC V. CITY OF BONITA SPRINGS, LEE COUNTY CIRCUIT COURT CASE NO. 21-CA-004285 (OCT. 20, 2023) • WHETHER A CITY COUNCIL MUST STATE ITS GROUNDS FOR DENIAL OF A PROPOSED COMPREHENSIVE PLAN AMENDMENT IN ITS MOTION TO DENY. • WHETHER THE CITY COUNCIL MEMBERS’ MOTIVES FOR DENYING A PROPOSED COMPREHENSIVE PLAN AMENDMENT CAN PROVIDE A BASIS TO CHALLENGE SUCH DENIAL. • WHETHER A PROCEDURAL DUE PROCESS CLAIM CAN BE RAISED IN REGARD TO A LEGISLATIVE DECISION. • WHETHER ALLOWING A COUPLE OF MEMBERS OF THE GENERAL PUBLIC TO SPEAK LONGER THAN THE FOUR-MINUTE TIME LIMIT VIOLATED THE APPLICANT’S PROCEDURAL DUE PROCESS RIGHTS. 19

ON APRIL 21, 2021, THE CITY OF BONITA SPRINGS CITY COUNCIL (“CITY COUNCIL”) DECIDED TO NOT TRANSMIT TO THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY (NOW KNOWN AS THE FLORIDA DEPARTMENT OF COMMERCE) AN AMENDMENT TO THE CITY OF BONITA SPRINGS COMPREHENSIVE PLAN (“CITY’S COMPREHENSIVE PLAN”) THAT WAS PROPOSED BY 3HWA LAND HOLDINGS, LLC (“PROPOSED IMPERIAL DISTRICT AMENDMENT”).

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THE PROPOSED IMPERIAL DISTRICT AMENDMENT WOULD HAVE CREATED A NEW IMPERIAL DISTRICT FUTURE LAND USE CATEGORY AND AMENDED THE CITY’S FUTURE LAND USE MAP DESIGNATION FOR 328.13 ACRES OF LAND (“PROPERTY”) OWNED BY 3HWA LAND HOLDINGS, LLC (“PROPERTY OWNER”), FROM THE CITY’S DENSITY REDUCTION GROUNDWATER RESOURCE FUTURE LAND USE CATEGORY (“DRGR”) TO THE NEWLY CREATED IMPERIAL DISTRICT FUTURE LAND USE CATEGORY.

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AS A RESULT OF THIS PROPOSED AMENDMENT, THE MAXIMUM DENSITY FOR THE PROPERTY WOULD HAVE INCREASED FROM APPROXIMATELY THIRTYTWO (32) DWELLING UNITS TO 700 DWELLING UNITS.

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• ON APRIL 18, 2022, THE PROPERTY OWNER FILED A FOUR (4) COUNT AMENDED COMPLAINT AGAINST THE CITY OF BONITA SPRINGS, FLORIDA (“CITY”).

• COUNT I WAS AN ACTION FOR A DECLARATORY JUDGMENT ALLEGING A VIOLATION OF THE PROPERTY OWNER’S SUBSTANTIVE DUE PROCESS RIGHTS. • COUNT II WAS AN ACTION FOR A DECLARATORY JUDGMENT ALLEGING A VIOLATION OF THE PROPERTY OWNER’S PROCEDURAL DUE PROCESS RIGHTS. • COUNT III WAS AN ACTION FOR INJUNCTIVE RELIEF BASED ON THE SUBSTANTIVE DUE PROCESS CLAIM IN COUNT I. • COUNT IV WAS AN ACTION FOR INJUNCTIVE RELIEF BASED ON THE PROCEDURAL DUE PROCESS CLAIM IN COUNT II. 23

ON OCTOBER 20, 2023, THE CIRCUIT COURT REJECTED ALL OF THE PROPERTY OWNER’S CLAIMS AND ENTERED ITS “ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW.” IN SO DOING, THE CIRCUIT COURT CONCLUDED, IN PART, AS FOLLOWS: “[T]HE COURT FINDS THAT THE CITY COUNCIL’S LEGISLATIVE DECISION IS ‘FAIRLY DEBATABLE.’ INDEED, THERE ARE MANY CONCEIVABLE REASONS WHY THE CITY COUNCIL COULD DECLINE TO ADOPT THE SPECIFIC POLICY VISION PROPOSED BY THE PLAINTIFF. MOREOVER, WHILE THE ACTUAL REASONS FOR A LEGISLATIVE DECISION ARE IRRELEVANT FOR PURPOSES OF ‘FAIRLY DEBATABLE’ REVIEW, IT MUST BE NOTED THAT THE CONCERNS IDENTIFIED HEREIN WERE EXPLICITLY ADDRESSED AND RECOGNIZED AT THE CITY COUNCIL HEARING.”

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“THE PROPOSED IMPERIAL DISTRICT AMENDMENT . . . WOULD INCREASE THE PERMITTED DENSITY ON THE PROPERTY FROM APPROXIMATELY THIRTY-TWO (32) DWELLING UNITS TO 700 DWELLING UNITS. SUCH A DENSITY CHANGE IN AN ENVIRONMENTALLY SENSITIVE AREA IS, IN AND OF ITSELF, A LEGITIMATE POLICY BASIS ON WHICH THE PROPOSED IMPERIAL DISTRICT AMENDMENT COULD BE DENIED.”

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“THE EVIDENCE DEMONSTRATED THAT THE PROPOSED IMPERIAL DISTRICT AMENDMENT COULD IMPACT TRAFFIC AND TRANSPORTATION, REQUIRE THE CITY TO SPEND PUBLIC FUNDS ON ROADWAY AND BRIDGE EXPANSION, AND ABANDON ITS PEDESTRIAN-FRIENDLY PLANS FOR TERRY STREET. THESE CONSIDERATIONS CONSTITUTE LEGITIMATE POLICY REASONS TO NOT ADOPT THE PROPOSED IMPERIAL DISTRICT AMENDMENT.”

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“[A]CCORDING TO THE EVIDENCE PRESENTED, THE PROPOSED IMPERIAL DISTRICT AMENDMENT WOULD DIRECT 700 DWELLING UNITS AWAY FROM THE DOWNTOWN AREA AND INTO A RURAL AREA, WHICH DEFENDANT STATES IS INCONSISTENT WITH THE CITY’S STRATEGIC PRIORITIES OF ‘DRGR PROTECTION’ AND ‘DOWNTOWN REVITALIZATION.’ . . . INDEED, COUNCIL MEMBER QUAREMBA IDENTIFIED THIS ISSUE AT THE CITY COUNCIL HEARING. . . . THIS LIKEWISE PRESENTS A CONCEIVABLE BASIS FOR THE CITY COUNCIL’S DECISION TO NOT ADOPT THE PROPOSED IMPERIAL DISTRICT AMENDMENT THAT IS ‘FAIRLY DEBATABLE.’”

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“THE COURT FURTHER FINDS THAT THE SPECIFIC RELIEF SOUGHT IN COUNT III OF THE AMENDED COMPLAINT – AN ORDER DIRECTING THE CITY COUNCIL TO ADOPT THE PROPOSED IMPERIAL DISTRICT AMENDMENT – WOULD VIOLATE THE SEPARATION OF POWERS DOCTRINE.”

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“IT IS WELL ESTABLISHED THAT PROCEDURAL DUE PROCESS DOES NOT APPLY WITH RESPECT TO LEGISLATIVE DECISIONS. . . . THUS, THERE CAN BE NO CLAIM AGAINST THE DEFENDANT FOR A ‘PROCEDURAL DUE PROCESS’ VIOLATION AS A MATTER OF LAW, AND, FOR THIS REASON ALONE, THE DEFENDANT IS ENTITLED TO THE ENTRY OF SUMMARY JUDGMENT ON COUNTS II AND IV.”

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“THE PLAINTIFF COMPLAINS ABOUT THE ‘MOTIVES’ BEHIND THE CITY COUNCIL’S DECISION. . . . THIS IS LEGALLY IRRELEVANT. MEMBERS OF A LOCAL GOVERNMENT’S LEGISLATIVE BODY ARE PERMITTED TO FORM OPINIONS ABOUT LEGISLATIVE POLICY MATTERS. . . . INDEED, THIS IS WHAT THEY ARE ELECTED TO DO.”

THE PROPERTY OWNER DID NOT APPEAL THE CIRCUIT COURT’S DECISION AND, THUS, THE CIRCUIT COURT’S DECISION IS FINAL AND EFFECTIVE. IF YOU DESIRE A COPY OF THIS THIRTY-THREE (33) PAGE DECISION, PLEASE E-MAIL YOUR REQUEST TO ME AT DAT@THERIAQUELAW.COM. 30

WALTON COUNTY CUSTOMARY USE CASE • ON NOVEMBER 9, 2023, THE CIRCUIT COURT GRANTED EIGHT MOTIONS FOR SUMMARY JUDGMENT THAT WERE FILED BY THE COUNTY. • THESE MOTIONS PERTAINED TO NINETY-FIVE (95) PROPERTIES WHOSE OWNERS HAD NOT INTERVENED IN THE CASE. • THE COURT CONCLUDED THAT THE COUNTY HAD MET ITS BURDEN OF DEMONSTRATING THE EXISTENCE OF RECREATIONAL CUSTOMARY USES ON THE PROPERTIES. • DUE TO A SETTLEMENT AGREEMENT BETWEEN THE COUNTY AND OTHER PARTIES, THE COURT LIMITED THE RECREATIONAL CUSTOMARY USES TO TRAVERSING THE BEACH AND SITTING ON THE BEACH. • THE COUNTY AND ATTORNEYS’ FOR OPPOSING PARTIES ARE STILL FIGHTING OVER THE FORM OF THE FINAL JUDGMENT THAT THE CIRCUIT COURT HAS YET TO ENTER.

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Thank You David A. Theriaque, Esquire DAT@Theriaquelaw.com

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