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08-09-04 Workshop Minutes v MINUTES OF THE WORKSHOP MEETING OF ATLANTIC BEACH CITY COMMISSION HELD IN COMMISSION CHAMBERS, 800 SEMINOLE ROAD, ON MONDAY, AUGUST 9, 2004. City Commission Members present were: John S. Meserve, Mayor Richard M. Beaver, Mayor Pro Tem Paul B. Parsons, Commissioner Sylvia N. Simmons, Commissioner J. Dezmond Waters, III, Commissioner Also: Jim Hanson, City Manager Alan Jensen, City Attorney Sonya Doerr, Community Development Director Maureen King, City Clerk The meeting, which was held for the purpose of discussing Comprehensive Plan amendment requirements, and a review of the operating budget for fiscal year 2004/2005, was called to order at 5:00 p.m. by Mayor Meserve. The first item for discussion was the Comprehensive Plan amendment requirements and the Mayor cautioned Commissioners not to discuss specific cases or to indicate how they would likely vote on those cases. Comprehensive Plan Amendment Requirements Sonya Doerr said that Florida was one of only a few states that regulated growth management at the state level and explained the history and requirements of the Growth Management Act. She distributed a handout that provided information regarding the procedures to amend the Comprehensive Plan, a comparison of legislative and quasi judicial decisions, and information on property rights law cases. A copy of Ms. Doerr's handout is attached hereto as Exhibit A. A lengthy discussion ensued and Ms. Doerr and Brenna Durden, an attorney experienced in land use cases and who had been invited to attend, responded to Commissioners' questions. City Attorney Alan Jensen distributed a handout containing Florida Statute 163.3187, and explained that large scale amendments were limited to two amendments per year but there was no limit on the number of small scale amendments that could be made per year. He reviewed the conditions and requirements that must be followed for both types of amendment. He also provided documentation relating to recent and current law suits regarding small scale amendments that were denied by local governments. His handout also contained information regarding the Bert Harris Act and law suits involving Coastal Development vs. City of Jacksonville Beach and Island, Inc. vs. City of Bradenton Beach. A copy of Mr. Jensen's handout is attached as Exhibit B. These cases were discussed at length. Regarding the proposed development on Johnston Island, Attorney Durden reminded the City Commission that a Comprehensive Plan amendment would have to be approved before the zoning issue could be acted upon. Page Two Minutes of Commission Workshop Meeting August 9, 2004 Discussion of Proposed Budget for FY 2004/2005 The City Manager gave a brief overview of the proposed budget. He said that while the city was in excellent financial condition, some of the fund balances were going down. Two ofthe biggest capital projects were the Hopkins Creek improvements and the Mayport Road medians and any project that was included in the City Commission's strategic plan objectives, was included in the budget. He reported that staffhad applied for a grant to cover a substantial portion of the Hopkins Creek project. Personnel benefits included a 3% of mid point of the pay scale for each employee position was included. He recommended a 3% COLA for employees but said this figure had not been factored into the budget. Considerable IT system enhancements were included in the budget and the Finance Director is working with banks to be able to receive credit/debit card payments, but time constraints did not permit further discussion. Since a regularly meeting of the City Commission was scheduled to follow at 7:15 p.m., the Mayor declared the workshop meeting adjourned at 6:55 p.m. Review of the proposed budget will continue at the next budget workshop to be held at 5:00 p.m. on Wednesday, August 11, 2004. Maureen King, CMC City Clerk 3 Exhibit A Workshop Minutes - 8/9/04 V Q C d d C Ri ---, --.. O i y- cv E E .~ L .N C t d L Q .~ ~~.. L. ^ J 1 r ^~ .~ L O V C C L LJ ...~ d Q~ J ._ a L A C O O V V Q ..r.. V Q 3 O N C d C L d t~ .~.+ ~+ L ^.n. L L O L L .O h .~ d ~. .~ 0 Q~ L L. 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O `~ ~ ~ ~. ~ L L i. _ (~ ~ ~ ~1-+ ~ ~ O 4~ ~ 3 O ,~O ~ "a ~ ~ ~~ tU O ~ = O *~ ~~ ~~ ~ ~ ~ >+ ~ ice' 400 ., ~- 4y0 ~~~0 ~ Gi _ ~ ~ ~ ~ ~~ ~~o° .~ .~, .~ ~ y~ '~A N ^~r O 3~ O~~tOI~ L ~ ~ ~ v tQ °'a~ c~~ ~~ oy,~t~ o~ ~~~~ ~.~~ ~ ~ ~. ~o ~.~°_' >ptZ ~~~. n ~~ .:~: '~ ~ ~ ~ ~ ~ '~'~ ~O ~,Q ,~.~ _ ~.C ~~ O ...~ ~~~ ~ ~ .~Q~ ~~ • p ~ ~y ~ ~ .~ _.~ ~ ~, ~.+ ....~.r ~ '~ N ~ ~~ o~~~s° L ~ L ~ V ~.~ ; ~ ~~ y o VI ,~ }+•~,O tj C ~ _ ~+ ~ +}- 3 ~ c~°°~a~u ~ ~~~~ .. v ~, ~ ~ ~ O o ~ ~~~~~~ ~~~c~3~ ~ ~,~~~ ~~~> ~ ~ .- Q ,> ~ Z3 .v C ~t~.~12 ~~v~ O O td Gs. ~ Supreme Court of Florida No. SC95686 COASTAL DEVELOPMENT OF NORTH FLORIDA, INC., etc., et al., Petitioners, vs. CITY OF JACKSONVILLE BEACH, Respondent. [April 12, 2001 CORRECTED OPII~TION WELLS, C.J. We have for review a decision on the following question certified to be of great public importance: ARE DECISIONS REGARDING SMALL-SCALE DEVELOPMENT AMENDMENTS PURSUANT TO SECTION 163.3187(1)(c), FLORIDA STATUTES, LEGISLATIVE IN NATURE AND, THEREFORE, SUBJECT TO THE FAIRLY DEBATABLE STANDARD OF REVIEW; OR QUASI-JUDICIAL, AND SUBJECT TO STRICT SCRUTINY? City of Jacksonville Beach v Coastal Development of North Florida nc , 730 So. 2d 792 (Fla. 1st DCA 1999). We have jurisdiction. ee art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question by holding that the small-scale development amendment decisions made pursuant. to section 163.3187(1)(c), Florida Statutes (Supp. 1996), are decisions which are legislative in nature and subject to the "fairly debatable" standard of review.' We approve the decision below. PROCEDURAL HISTORY Coastal Development of North Florida, Inc. (Developers), applied to the City of Jacksonville Beach (City) for asmall-scale development amendment to the City's comprehensive plan pursuant to section 163.3187(1)(c),.Florlda Statutes (Supp. 1996).2 Developers wanted to commercially develop 1.7 acres of a parcel of land they own in the City. The proposed amendment sought to change the site's designation on the City's future land use map from "Residential -Low Density" to "Commercial Professional Office." The Jacksonville Beach City Council followed lAs we.said in Martin CountYv. Yusem 690 So. 2d 1288 (Fla. 1997j: The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. In other words, an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity. Id. at 1295 (citations. and initial quotation marks removed). ZSection 163.3187(1)(c) establishes conditions under which local governments may adopt comprehensive plan amendments that are directly related to proposed small-scale development activities. -2- the recommendation of the City's Planning Commission and denied the proposed amendment. Developers petitioned the circuit court for a writ of certiorari and, alternatively, commenced an action for declaratory and injunctive relief. The circuit court3 observed that in 1Vlartin County v Yusem, 690 So. 2d 1288 (Fla. 1997), this Court held that comprehensive plan amendment decisions by a local government are legislative in nature, but that court also noted that we specifically declined to determine whether small-scale development amendments were as well.4 The circuit court then acknowledged our opinion in Board of County Commissioners v Snyder, 627 So. 2d 469, 476 (Fla. 1993), in which we held zoning changes of limited impact are quasi-judicial in nature subject to "strict 3It appears that pursuant to procedures in the Fourth Judicial Circuit, a single circuit judge presides over first-tier certiorari review. The number of circuit judges presiding over first-tier certiorari review is not uniform throughout Florida's circuit courts. Some circuits have three judge panels for such review. We recently referred the question of whether there should be a uniform procedure for first-tier certiorari review to the Rules of Judicial Admuiisttation Committee of The Florida Bar. ee Florida Power & Light Co v City of D~ria, 761 So. 2d 1089, 1094 (Fla. 2000). 4In footnote 6 of Yusem, we said We do note that in 1995, the legislature amended section 163.3187(1)(c), Florida Statutes, which .provides special treatment for comprehensive plan amendments directly related to proposed small-scale development activities. Ch. 95- 396, § 5, Laws of Fla. We do not make any findings concerning the appropriate standard of review for these small-scale development activities. Yns~n, 690 So. 2d at 1293 n.6. -3- scrutiny" review.5 The circuit court likened small-scale development amendments to rezoning requests and thus concluded that Snyder applied to this category of developments. 6 The circuit court concluded, as a matter of law, that: (1) a local government acts in a quasi judicial rather than legislative manner when acting on small-scale development amendment requests; (2) on review, quasi judicial decisions are subject to strict scrutiny and must.be supported in the record by competent, substantial evidence; and (3) certiorari review is appropriate to review quasi- judicial decisions made by local governments. Applying the strict scrutiny standard, the circuit court found that the City's action was not supported by competent, substantial evidence. Thus, the circuit court granted the petition for certiorari, quashed the City's decision denying the Developers' application, and ordered the City to grant Developers' application. The City petitioned the First District Court of Appeal for second-tier certiorari review. On review in the First District, the First District granted the City's petition STtris Court in Sn~ stated that strict scxutiny in the land use context must be distinguished from constitutional strict scrutiny. In the land use context, strict scrutiny generally means strict compliance with the comprehensive plan. ~ Snyder, 627 So. 2d at 475. 6Whde we disagree with his conclusion, Circuit Judge Charles O. Mitchell, Jr., is commended for his thorough analysis provided in his order granting certiorari. See oasts Development of North Florida Inc v Cit~of Jacksonville Beach, No. 97-000079-A.P (Fla. 4th Cir. Ct., order dated June 30, 1998). -4- ,." for the writ and held that decisions regarding small-scale development requests made pursuant to section 163.3187(1)(c) are legislative decisions..~g~ a tal Development, 730 So. 2d at 794-95. Thus, the First District held review of such decisions is by a de novo action in the circuit court subject to the deferential "fairly debatable" standard of review. ee ~ The First District reasoned that all comprehensive plan amendment requests involve policy formation rather than application because all comprehensive plan amendment requests, regardless of size, require the governmental entity to determine whether it is socially desirable to reformulate policy. ee id. at 794. The First District also found that this Court •, in Yusem desired to bring predictability to this area of law by.mandating a uniform approach to all comprehensive plan amendment requests. ee id. Accordingly, the First District granted the petition for certiorari, reversed the circuit court, remanded the case for a de novo hearing on the Developers' alternative action for declaratory and injunctive relief, and certified the question to this Court. ee id This review follows. ANALYSIS In Yusem, we described the process for amending a local government's comprehensive plan, and we also noted the involvement of the Department of Community Affairs (Department) in this process. Yusem, 690 So. 2d at 1294-95. -5- The Department is the designated state land planning agency' under the Local Government Comprehensive Planning and Land Development Regulation Act {the Act).8 The amendment process entails, among other things, an integrated review process involving a mandatory review by the Department. ee Yusem, 690 So. 2d at 1294. A local government must conduct two advertised public hearings on each proposed amendment prior to its adoption.9 A local government may only amend its comprehensive plan twice a year.' ° The process of adopting small-scale development amendments is somewhat different. Section 163.3187(1)(c) describes the process of proposing and adopting a small-scale development amendment. Unlike regulaz comprehensive plan amendments, small-scale development amendments only require one reading for adoption by the local government," are not constrained by the two-amendments- per-year rule,12 and are not subject to mandatory review by the Department. 13 ' ee § 163.3164(20), Fla. Stat. (1995). a ee §§ 163.3161-.3243, Fla. Stat. (1995), et. seq. 9,~ § 163.3184(15)(b), Fla. Stat. (Supp. 1996). 10See § 163.3187(1), Fla. Stat. (Supp. 1996). "See § 163.3187(1)(c)3., Fla. Stat. (Supp. 1996). 'Z,~ § 163.3187(1)(c), Fla. Stat (Supp. 1996). 13 ee § 163.3187(3)(x), Fla. Stat. (Supp. 1996). -6- Administrative review still exists in which "any affected person" may chaIlenge the adopted amendment for compliance with the Act.14 The Department has standing to intervene in these administrative hearings.'s Proposals eligible for treatment as small-scale development amendments are limited to properties that, among other things: are ten acres or fewer; have not been subject to an amendment within the previous year; are no closer than 200 feet from any property of the same owner granted a change within the previous year; and are not located within an area of critical state concern.' 6 A Local government is limited to a cumulative acre Limit per year of total area within that government's boundaries that may be subject to small-scale amendments." A small-scale amendment may not involve a change to the textual goals, policies, or objectives of the comprehensive plan.' e 1a~ § 163.3187(3)(a), Fla. Stat. (Supp. 1996). 15See § 163.3187(3)(a), Fla. Stat. (Supp. 1996). 16See § 163.3187(1)(c)1., Fla. Stat. (Supp. 1996). 17See § 163.3187(1)(c)l.a., Fla. Stat. (Supp. 1996). ~gSee § 163.3187(1)(c)l.d., Fla. Stat. (Supp. 1996). Section 163.3187(1)(c)l.d, states: The proposed amendment does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to the future land use map for asite-specific small scale development activity. -7- A comprehensive plan is composed of several elements.' 9 One element of the comprehensive plan is the future land use element.20 The future land use element designates "proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and privates uses of land."Z' The future land use map (PLUM) is a component of the future land use element of the comprehensive plan. fee u e , 690 So. 2d at 1292. The PLUM is a pictorial depiction of the future land use element and is supplemented by written "goals, policies, and measurable objectives."ZZ The.FLUM must be internally consistent ! with the other elements of the comprehensive plan.zs In Yusem, we held that all comprehensive plan amendments are legislative decisions. ee Yusem, 690 So. 2d at 1295. At that time, we expressly declined to pass upon small-scale development amendments, as that issue was not before us. ee .~d at 1293 n.6. Subsequent to our decision in Yusem, four of the five district i 9~ § 163.3177, Fla. Stat. (Supp. 1996). 20.S~e § 163.3177(6), Fla. Stat (Supp. 1996). zi § 163.3177(6)(a), Fla. Stat (Supp. 1996). zz§ 163.3177(6)(a), Fla. Scat. (Supp. 1996). zs~ § 163.31'77(2), Fla. Scat (Supp. 1996). -8- courts have held that small-scale development amendments are legislative in nature and subject to the fairly-debatable standard of re.view.sa We based our holding in se on several factors. First, we concluded that because the original adoption of the comprehensive plan by a local government was a legislative act, it naturally followed that a proposed modification of that comprehensive plan was likewise legislative in nature. ee i~ at 1294. Second, the integrated review process by several levels of government indicates that an action on a comprehensive plan amendment is a policy decision. wee ~.d. Third, section 163.3184(10)(a) mandates that the fairly-debatable standard of review ,,, applies in an administrative hearing to determine compliance with the Act. See it . at 1295. Fourth, the holding would remove uncertainty and promote unifomuty in the land-use law context. ee id. We conclude that same reasoning applies here, and we see no reason to deviate from it. Developers contend that a primary distinction between small-scale developments and the developments covered by Yusem is that small-scale developments involve changes to the FLUM which do not alter the textual goals, 2a~ Mir u~ v County CQrnm'n of Broward oimty, 752 So. 2d 1263 (Fla. 4th DCA 2000), review granted, No. SC00-875 (Fla. Oct. 13, 2000); Palm Springs Gen Hose Lnc v Cit,_,y of Hialeah ,arrjens, 740 So. 2d 596 (Fla. 3d DCA 1999); City of Jacksonville Beach v. Coastal Dev of North Flori Inc , 730 So. 2d 792 (Fla. 1st DCA 1999); Fleernan v. Citv of St Augustine Beac~i 728 So. 2d 1178 (Fla. 5th DCA 1999). -9- policies, and objectives of a local government's comprehensive plan and are thereby more similaz to zoning applications covered by ~nYder. We do not agree. Rather, we find the following analysis to be persuasive: [A]mendments to a legislatively adopted statement of general policy are legislative acts. Even if the comprehensive plan amendment consists of an amendment to the comprehensive plan's future land use map which is applicable only to a single tract of land, the amendment should be deemed legislative. The future land use plan map alone does not determine or control the uses which can be made of a particular tract of land. Rather, the comprehensive plan as a whole, including the future land use map and all of the other policies of the plan, consists of legislative policies that must be applied to determine what uses can be made of a specific tract of land. Thomas G. Pelham, Quasi-Judicial Rezonings• A Commentary on the SnXder Decision and the Consistency Requirement, 9 J. Land Use & Envtl. L., 243, 300- 301 (1994). The FLUM is part of the comprehensive plan and represents a local government's fundamental policy decisions. Any proposed change to that established policy likewise is a policy decision. The FLUM itself is a policy decision. A decision that would amend the FLUM requires those policies to be reexamined, even though that change is consistent with the textual goals and objectives of the comprehensive plan. Therefore, the scope of the proposed change is irrelevant because any proposed change to the FLUM requires a -10- reexamination of those policy considerations anal not an application of those policies. By its very nature, a proposed amendment to the FLUM, as an element of the comprehensive plan, requires policy reformulation because the amendment seeks a change to the FLUM. However, a proposed zoning change under Sn.~der must be consistent with the FLLTM, thus requiring policy application instead of policy reformulation. ee Snyder, 627 So. Zd at 475: The First District noted the distinction between policy reformulation and application. We approve the First District's thoughtful opinion on this point: +.. It seems to us that all comprehensive plan amendment requests necessarily involve the formulation of policy, rather than its mere application. Regardless of the scale of the proposed development, a comprehensive plan amendment request will require that the governmental entity determine whether it is socially desirable to reformulate the policies previously formulated for the orderly future - growth of the community. This will, in turn, require that it consider the likely impact that the proposed amendment would have on traffic, utilities, other services, and future capital expenditures, among other things. That is, in fact, precisely what occurred here. Such considerations are different in land from those which come into play in considering a rezoning request. Coastal Development, 730 So. 2d at 794 (emphasis added). The lack of mandatory Department oversight does not alter our .conclusion. While small-scale development amendments do not undergo the extensive -11- integrated review process we described in Yu em, there are still administrative remedies available to any aggrieved party in the small-scale development amendment context that are not available in the zoning context.2S The Department may also intervene in these administrative hearings. ee § 163.3187(3)(x), Fla. Stat. (Supp. 1996). Additionally, our conclusion in this case reinforces our policy underlying Yu e ,which was to promote uniformity and certainty in land use planning decisions. ~e Yusem, 690 So. 2d at 1295. As we stated in Yusem, a party challenging a local government's decision on a comprehensive ~ plan amendment should file an original action in the circuit court and not a petition for certiorari. ee Yusem, 690 So. 2d at 1295. The circuit judge, in his order granting certiorari, made an alternative finding that, even if the fairly-debatable standard applied, the City failed to meet that burden in this case. However, the circuit court's conclusion on this point was improper because the circuit court made this finding only upon a review of the record and not in a de novo action. Thus, remand is proper to allow the circuit court to proceed with the Developers' alternative action for declaratory and injunctive relief. ' ssSection 163.3187(3)(x) confers standing in these administrative hearings to any "affected person" as broadly defined by section 161.3184(1)(x), without the need to allege an injury. Conversely, when challenging a zoning decision, an affected person must allege an injury. See § 163.3215, Fla. Stat. (1995). -12- We answer the certified question by holding that small-scale development amendments sought pursuant to section 163.3187(1)(c) are legislative decisions which are subject to the fairly-debatable standard of review. A challenge to a local government's decision on a small-scale development amendment may be commenced as an original action in the circuit court. We approve the decision under review and remand with directions that the circuit court proceed on the Developers' alternative action for declaratory and injunctive relief in a manner consistent with this. opinion. .. It is so .ordered. SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance First District -Case No.1D98-2811 T. Geoffrey Heekin, S: Hunter Malin and Eric L. McAuley of Bartlett & Heekin, P.A., Jacksonville, Florida, for Petitioners -13- William S. Graessle of Winegeart & Graessle, P.A., Jacksonville, Florida; and Stephen Stratford, Jacksonville, Florida, for Respondent Donna E. Blanton of Steel, Hector & Davis LLP, Tallahassee, Florida, for Florida Home Builders Association, Amicus Curiae -14- i :102 d, 358 ~' =. BD. OF CTY. COM'RS OF BREti:1RD v. SNIDER FIa. ~~9 Cite as 627 So.Zd 469 (Fta. 1993) capacity, its actions will be sustained as long g0 ARD OF COL'1VTI COiV1YIISSIOti"ERS OF BREVr1RD COliNTY, Florida, Petitioner, v. Jack R. Sy1'DER, et us., Respondents. No. 79720. Supreme Court of Florida. as they are fairly debatable. 2. Counties x58 Rulings of county board of commission- ers acting in its quasi-judicial capacity are subject to review by certiorari and will be upheld only if they are supported by substan- tial competent e~ridence. Oct. 7, 1993. Rehearing Denied Dec. 23, 1993. Property owners brought original action seeking wilt of certiorari after county board denied their application for rezoning of prop- T ertr from general use to .medium density multiple-family dwelling use. The District _ Court of Appeal, 595 Sold 65, granted peti- lion. On review for direct conflict of deci- sions, the Supreme Court,. Grimes, J., held that: (1) rezoning action -which entails appli- cation of general rule or .policy to specific ^:cii~iduals, interests or activities is quasi- ~udicial in nature, subject to strict scrutiny or. ceteiorari review; (2) landowner who dem- unstrates that proposed use of property is consistent with comprehensive plan is not prnsumptively entitled to such use; (3) land- owner seeking to rezone property has burden of proving that proposal is consistent with ;• comprehensive plan, and burden thereupon shift, to zoning board to demonstrate that maintaining existing zoning classification ac- MTnIi~1;CS iegliidmate pizbliC purpose; and (4) r•• although board is not required to make find- inKS of fact in denying application of rezon- z ing, upon review by certiorari in the circuit =_ court it .~ ust be shown there was competent substantial evidence presented to board to =• ~pport its ruling. 3. Counties «58 It is character of hearing that deter- mines whether or not county board action is legislative or quasi-judicial, for purposes of judicial review; generally speaking, legisla- tive action results in formulation of a general rule of policy, ~,vhereas judicial action results in application of a general rule of policy. 4. Zoning and Planning x565, 604, 703 Comprehensive rezonings affecting a large portion of the public are legislative in nature, and are subject to "fairly debatable" standard of re~zew; however, rezoning ac- tions which can be viewed as policy applica- tion, rather than. policy setting, and which have an impact on a limited number of per- sons or property owners are quasi-judicial in nature and are properly reviewable by peti- tion for certiorari; on such review they are subject to strict scrutiny and to substantial evidence standard. 5. Zoning and Planning x565 County board's denial of landowner's ap- plication to rezone property to zoning classi- fication which would allow construction of 15 residential units per acre was in the nature of aquasi-judicial proceeding, and was prop- erly reviewable by petition for certiorari. Decision of District Court of Appeal 6. Zoning and Planning x375.1, 703 quashed. Even where denial of a zonin a Shaw, J., dissented. ;. Counties cr 58 Legislative action of county board of rnnsmissioners is subject to aitack in circuit ~.; however, in deference to policvmal;ing ~nc~on of board when acting in a legislative g ppIica- tion would be inconsistent with comprehen- sive plan, local government should have dis- cretion to decide that maximum development density should not be allowed provided gov- ernmental body approves some development that is consistent with the plan and govern- ment's decision is supported by substantial, competent evidence. jj1 ~~ ~~~ ,i,} ;i( !` F i# `+x ~£ s ` ~.~'1` -;~ ~_ :.t F )7(S r 4s ~. _:. f i' i i C '`P °~:i l'• t f_~~~,~~ ~. { ;t lF 4,, r ;~~ :.~~ i i ; ~ t j~ Iifj ~~l : . ,~ -T -~ • - ~''- .:~ - _~ .. }i 1 -~! ~ Fla. 6^i SOLTHER~ REPORTER, 3d SERIES i. Zoning and Planning X194.1 Landowner who demonstrates that pro- posed use is consistent with comprf~hensive zoning plan is not presumptively entitled to such use if opposing governmental agency fails to prove by clear and convincing evi- dence that specifically stated public necessity requires a more restricted use; property owner is not necessarily entitled to relief by proving such consistency when agency action is also consistent with plan. 8. Zoning and Planning x240 Growth Management Act was not in- tended to preclude development but only to ensure that it proceed in an orderly manner. West's F.S.A § 163.3161 et seq. 9. Zoning and Planning x107, 109, 194.1 Landowner seeking to rezone property has burden of proving that proposal is consis- tent wiih comprehensive plan and complies v~zth all procedural requirements of zoning ordinance; burden thereupon shifts to gov- ernmental board to demonstrate that main- taining existing zoning classincation with re- spect to the property accomplishes a legiti- mate public purpose; board will have burden of showing refusal to rezone property is not arbitrary, discriminatory, or unreasonable; if board carries burden, application should be denied. 10. Zoning and Planning «199, i03 Although zoning board is not required to make findings of fact in making decision on landowner's application to rezone property, it must be shown there was competent substan- tial evidence presented to the board to sup- port its ruling in order to sustain its action, upon review by certiorari in circuit court. ivancy Stupa:^:ch, Asst. Gen. Counsel, and Jane C. Ha~.-man, Deputy Gen. Counsel, Ta1_ lahassee, amicus curiae, for FL League of Cities, Inc. Paul R. Gougelman, III, and Maureen 1-I. Matheson, Reinman, Harrell, Graham, Mitch- ell & Watttvood, P.A, Melbourne, amicus curiae, for Space Coast League of Cities, Inc., City of Melbourne, and Town of India_ lantic. Richard E. Gentry, FL Home Builders Assn, and Robert iVI. Rhodes and Cathy yI, Sellers, Steel, Hector and Davis, Tallahassee, amicus curiae, for FL Home Builders Assn. David La Croix, Pennington, Wilkinson & Dunlap, P _~., and William J. Roberts, Rob- erts and Eagan, P.A., Tallahassee, amicus curiae, for FL Assn of Counties. David J. Russ and Karen Brodeen, Asst. Gen. Counsels, Tallahassee, amicus curiae, for FL Dept. of Community Affairs. Richard Grosso, Legal Director, Tallahas- see, and C. Allen Watts, Cobb, Cole and Bell, Daytona Beach, amicus curiae, for 1000 Friends of FL. Neal D. Bowen, County Atty., Kissimmee, amicus curiae, for Osceola County. M. Stephen Turner and David K. Miller, Broad and Cassel, Tallahassee, amicus curi- ae, for tilonticello Drug Co. John J. Copelan, Jr., County Atty., and Barbara S. Ylonahan, Asst. County Atty. for Broward County, Fort Lauderdale, and Emeline Acton, County Att}~. for Hillsbor- ough County, Tampa, amici curiae, for Bro- ward County, Hillsborough County and FL Assn of County Attys., Inc. Thomas G. Pelham, Holland & Knight, Tal- lahassee, amicus curiae, pro se. Robert D. Guthrie, County Atty., and Eden Bentley, Asst. County Atty., Mel- bourne, for petitioner. `Frank J. Griffith, Jr., Cianfrogna, Telfer, Reda & Faherty, P.A, Titusville, for respon- dents. Denis Dean and Jonathan A Glogau, Asst. Attys. Gen., Tallahassee, amicus curiae, for Atty. Gen., State of FL. GRIMES, Justice. We review Snyder v. Board of County . Commissioners, 595 Sold 60 (Fla. 0th DCA1991), because of its conflict wiih Schauer v. City of I~liami Beach, 112 Sold 838 (F1a.1909); City of Jacksonville Beach v.~ Grubbs, 461 So.2d 160 (Fla. 1st DCA1984), review denied, 469 So.2d 749 (F1a.1985); and. Palm Beach ~ County v. Tinnerman, 017• So.2d 699 (Fla. 4th DCA1987), review denied, - ~! The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power. The owner will not be required to sacrifice his rights absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning; restriction exceeds the bounds of necessity for the public welfare, as, in our opinion, do the restrictions controverted here, they must be stricken as an unconstitutional invasion of property rights. Burritt v. Harris, 172 So.2d 820 (Fla. 1965) (emphasis supplied). Since zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner. Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla. 1973). jPlermitted uses must be interpreted broadly, prohibited uses strictly, so that doubts are resolved in a property owner's favor. Zoning laws are in derogation of the common law and, as a general rule, are subject to strict construction in favor of the right of a property owner to the unrestricted use of his property. Mandelstam v. City Commission of the City of South Miami, 539 So.2d 1139 (3d DCA 1988) (emphasis supplied). Supreme Court Issues Significant Decision Regarding Regulatory "Takings": Environmen... Page 1 of 2 supreme court Issues Significant Decision Regarding Regulatory "Takings" Amy L. Edwards Washington, D.C. Lawrence R. Lieberman Washington, D.C. n amulti-faceted decision with multiple concurring and dissenting opinions, the U.S. Supreme Court ruffed on June 28, .001, that the government may be required to compensate landowners for regulatory "takings" that intertere with their bility to develop their land. Palazzolo v. Rhode Island, No. 99-2047 2001 WL 721005. The Court's decision hinged on No key issues: (1) whether the property owner's claim was "ripe" for review, and (2) whether the property owner's cquisition of title after the date of enactment of the restrictive environmental regulations had deprived him of the bility to file a "takings" claim. The Court ruled In the property owner's favor on these two issues. Nevertheless, it :manded the case to the Rhode Island courts because the property owner had not yet established whether it could evelop the "uplands" portion of his property (and therefore whether it had been denied ail "economically beneficial se" of its property). of the Case e case was brought by Mr. Palazzolo, the owner of 18 acres of coastal wetlands on the Rhode Island coast. Mr. lazzolo had invested in a corporation that had bought the land in 1959. When the corporation failed to pay its incoi ces, title to the property passed, by virtue of state law, to Mr. Palazzolo, the sole shareholder. This passage of title curved after the Rhode Island Coastal Resources Management Council (the Council) had been created and had opted regulations declaring salt marshes to be protected coastal wetlands. corporation that originally held title, and later Mr. Palazzolo, spent the better part of four decades wrangling with town to obtain permission to develop the land. Initially, they submitted plans to subdivide the land into 74 lots, and 'r they submitted plans to build a private beach club on the property. In connection with these plans, Mr. Palazzolo d various applications with the state to obtain permission to fill in the wetlands, but these applications were ail mately denied. fter repeated denials of his plans, Mr. Palazzolo flied an inverse condemnation action in the Rhode Island state court, Ileging that the state's wetlands regulations had deprived him of "all economically beneficial use" of his property, Without compensation, in violation of the Fifth and Fourteenth Amendments. The lower courts denied Mr. Palazzolo's kings claims, determining that his claims were not "ripe" for review and that he had no standing to bring the claims ecause he had acquired title to the land after the date of passage of the regulations. The lower courts also found that Ir. Palazzolo had not proven that he had been deprived of all economically beneficial use, as testimony established gat the "uplands" portion of the properly was worth $200,000. ustice Kennedy, who was joined in whole or part by five other justices, overturned the Rhode Island Supreme Court's uling, determining that (1) the Council had in fact issued a "final" decision regarding Mr. Palazzolo's application to evelop the property and (2) petitioner had a right to challenge regulations predating his ownership of the property. luoting from its opinion in Williamson County Regional Planning Comm n v. Hamilton Bank of Johnson City, 473 U.S. 72, 186 (1985), Justice Kennedy stated that the key issue is whether the governmental entity "charged with nplementing the regulations had reached a final decision regarding the application of the regulations to the property t issue." Palazzo%, supra at * 8. In this case, Mr. Palazzolo's claim was ripe for review because there was "no ~dication the Council would have accepted the application had petitioner's proposed beach club occupied a smaller urface area. To the contrary, it ruled that the proposed activity was not a 'compelling public purpose."' Id. at *9. The ourt stated that a landowner need not go through countless rounds of repetitive land use review processes or further, Mile applications with other agencies just to prove that its claim was "ripe." "While a landowner must give aland-use uthority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit ny development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings aim is likely to have ripened." Id. By the same token, an application to develop the upland portion of the property as not required since there was no uncertainty as to its permitted use or as to the estimated worth of the upland roperty. "Ripeness doctrine does not require a {andowner to submit applications for their own sake." Id. Even more significantly, the Court ruled that landowners have a right to challenge environmental regulations predating heir ownership, even if they had notice of the land use restrictions. The Court recognized that it may take years to perfecta "takings" claim, and that it would be unfair to deprive future generations of the right to challenge nreasonable limitations on the use and value of their property. "[A] blanket rule that purchasers with notice have no ompensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for hat is taken." Id. at *14. http://www.hklaw.com/Publications/Newsletters.asp?ID=204&Article=1098 3/5/2004 aupreme l;ourt Issues Significant llecision Regarding Regulatory "Takings": Environmen... Page 2 of 2 ' ignificance and Potential Impact of the Decision is case is significant for two principal reasons. It establishes that: (1) a property owner does not need to exhaust very conceivable option for developing its land, when the outcome of such a process is clear, in order to have a "ripe" regulatory "takings" claim; and (2) a property owner who takes title after the enactment of regulations that may restrict his ability to develop his land may nevertheless have a bads for filing a regulatory takings claim. ~perty owners should now be able to file "takings" claims without needing to file endless rounds of pointless plications in order to establish that they have been denied substantial economic value in their land. Denial of plications to use the property for its intended purpose, rather than passage of the overriding regulation, will trigger a termination whether ataking has occurred. Pa/azzo% decision has a potentially huge impact upon a broad range of environmental regulations, including ands regulations and land use restrictions applied at contaminated brownflelds sites. =finally, the decision is likely to cause more confusion than clarity in the short-term because of the substantial number if concurring and dissenting opinions. This confusion will be particularly apparent in cases involving pre-existing 'egulations, where the principal question will be the property owner's reasonable investment-backed expectations. The ~a/azzolo decision is likely to have its greatest impact in reso(ving when a "takings" claim may be filed, but will shed eery little new light on what type of regulation is likely to cause a "taking" in the first place or how to measure the mpact of a "taking." Edwards, Mr. Liebesman, and Mr. Rosenthal are partners practicing environmental !aw in Holland & Knight's hington, D. C., office. http://www.hklaw.com/Publications/Newsletters.asp?ID=204&Article=1098 3/5/2004 ALAN C. JENSEN Attorney at Law 935 North Third Street Post Office Box 50457 Jacksonville Beach Florida 327A0-0457 Telephone (904) Z46-2500 Exhibit B Workshop Minutes - 8/9/04 Facsimile (904) 246-9960 E-Mail: AJensenI.aw~aol.com ATLANTIC BEACH CITY COMIVIISSION August 9, 2004 WORKSHOP MEETING "COMPREHENSIVE PLAN AMENDMENTS" 1. Fla. Stat. § 163.3187 "Amendment of adopted comprehensive plan" 2. Coastal Development v. City of Jacksonville Beach Fla. Sup. Ct. 2001 3. Island~Inc. v. City of Bradenton Beach Fla. 2d. DCA 2004 4. Bert Harris Act article Fla. Bar Journal 2004 Page 2 of 11 ,:.: ~~~.: West's F.S.A. § 163.3187 Page 1 P West's Florida Statutes Annotated Currentness Title XI. County Organization and Intergovernmental Relations 'pia Chapter 163. Intergovernmental Programs (Refs & Annos) ~ Part II. Growth Policy; County and Municipal Planning; Land Development Regulation (Refs & Annos) -.163.3187. Amendment of adopted comprehensive plan (t) Amendments to comprehensive plans adopted pursuant to this part may be made not more than two times during any calendar year, except: (a) In the case of an emergency, comprehensive plan amendments may be made more often than twice during the calendar year if the additional plan amendment receives the approval of all of the members of the governing body. "Emergency" means any occurrence or threat thereof whether accidental or natural, caused by humankind, in war or peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property or public funds. (b) Any local government comprehensive plan amendments directly related to a proposed development of regional impact, including changes which have been determined to be substantial deviations and including Florida Quality Developments pursuant to s. 380.061, may be initiated by a local planning agency and considered by the local governing body at the same time as the application for development approval using the procedures provided for local plan amendment in this section and applicable local ordinances, without regard to statutory or local ordinance limits ou the frequency of consideration of amendments to the local comprehensive plan, Nothing in this subsection shall be deemed to require favorable consideration of a plan amendment solely because it is related to a development of regional impact. (c) Any local government comprehensive plan amendments directly related to proposed small scale development activities may be approved without regard to statutory limits on the frequency of consideration of amendments to the local comprehensive plan. A small scale development amendment may be adopted only under the following conditions: 1. The proposed amendment involves a use of 10 acres or fewer and: a. The cumulative annual effect of the acreage for all small scale development amendments adopted by the local Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works 1. Fla. Statute 163.3187 ~ Page 3 of 11 Page 2 West's F.S.A. § 163.3187 government shall not exceed: (I) A maximum of 120 acres in a local government that contains areas specifically designated in the local comprehensive plan for urban infill, urban redevelopment, or downtown revitalization as defined in s. 163.3164, urban infill and redevelopment areas designated under s. 163.2517, transportation concurrency exception areas approved pursuant to s. ] 63.3180(5), or regional activity centers and urban central business districts approved pursuant to s. 380.06(2)(e); however, amendments under this paragraph may be applied to no more than 60 acres annually of property outside the designated areas listed in this sub-sub-subparagraph. Amendments adopted pursuant to paragraph (k) shall not be counted toward the acreage limitations for small scale amendments under this paragraph. (II) A maximum of 80 acres in a local government that does not contain any of the designated areas set forth in sub-sub-subparagraph (I). (III) A maximum of 120 acres in a county established pursuant to s. 9, Art. VIII of the State Constitution. b. The proposed amendment does not involve the same property granted a change within the prior 12 months. c. The proposed amendment does not involve the same owner's property within 200 feet of property granted a change within the prior 12 months. d. The proposed amendment does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to the future land use map for a site-specific small scale development activity. e. The property that is the subject of the proposed amendment is not located within an area of critical state concern, unless the project subject to the proposed amendment involves the construction of affordable housing units meeting the criteria of s. 420.0004(3), and is located within an area of critical state concern designated by s. 380.0552 or by the Administration Commission pursuant to s. 380.05(1). Such amendment is not subject to the density limitations of sub-subparagraph f., and shall be reviewed by the state land planning agency for consistency with the principles for guiding development applicable to the area of critical state concern where the amendment is located and shall not become effective until a final order is issued under s. 380.05(6). f. If the proposed amendment involves a residential land use, the residential land use has a density of 10 units or less per acre, except that this limitation does not apply to small scale amendments described in sub-sub- ' Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 4 of 11 Page 3 West's F.S.A. § 163.3187 subparagraph a. (I) that are designated in the local comprehensive plan for urban infill, urban redevelopment, or downtown revitalization as defined in s. 163.3164, urban infill and redevelopment areas designated under s. 163.2517, transportation concurrency exception areas approved pursuant to s. 163.3180(5), or regional activity centers and urban central business districts approved pursuant to s. 380.06(2)(e). 2. a. A ]ocat government that proposes to consider a plan amendment pursuant to this paragraph is not required to comply with the procedures and public notice requirements of s. 163.3184(15)(c) for such plan amendments if the local government complies with the provisions in s. 125.66(4)(a) for a county or in s. 166.041(3)(c) for a municipality. If a request for a plan amendment under this paragraph is initiated by other than the local govemment, public notice is required. b. The local government shall send copies of the notice and amendment to the state land planning agency, the regional planning council, and any other person or entity requesting a copy. This information shall also include a statement identifying any property subject to the amendment that is located within a coastal high hazard area as identified in the local comprehensive plan. 3. Small scale development amendments adopted pursuant to this paragraph require only one public hearing before the governing board, which shall be an adoption hearing as described in s. 163.3184(7), and are not subject to the requirements of s. 163.3184(3)-(6) unless the local government elects to have them subject to those requirements. (d) Any comprehensive plan amendment required by a compliance agreement pursuant to s. 163.3184(16) may be approved without regard to statutory limits on the frequency of adoption of amendments to the comprehensive plan. (e) A comprehensive plan amendment for location of a state conectional facility. Such an amendment may be made at any time and does not count toward the limitation on the frequency of plan amendments. (f) Any comprehensive plan amendment that changes the schedule in the capital improvements element, and any amendments directly related to the schedule, may be made once in a calendar year on a date different from the two times provided in this subsection when necessary to coincide with the adoption of the local government's budget and capital improvements program. (g) Any local govemment comprehensive plan amendments directly related to proposed redevelopment of Brownfield areas designated under s. 376.80 may be approved without regard to statutory limits on the frequency of consideration of amendments to the local comprehensive plan. Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 5 of 11 West's F.S.A. § 163.3187 Page 4 (h) Any comprehensive plan amendments for port transportation facilities and projects that are eligible for funding by the Florida Seaport Transportation and Economic Development Council pursuant to s. 311.07. (i) A comprehensive plan amendment for the purpose of designating an urban infill and redevelopment area under s. 163.2517 may be approved without regard to the statutory limits on the frequency of amendments to the comprehensive plan. (j) Any comprehensive plan amendment to establish public school concurrency pursuant to s. 163.3180(13), including, but not limited to, adoption of a public school facilities element and adoption of amendments to the capital improvements element and intergovernmental coordination element. In order to ensure the consistency of local government public school facilities elements within a county, such elements shall be prepared and adopted on a similar time schedule. (k) A local comprehensive plan amendment directly related to providing transportation improvements to enhance life safety on Controlled Access Major Arterial Highways identsed in the Florida Intrastate Highway System, in counties as defined in s. 125.011, where such roadways have a high incidence of traffic accidents resulting in serious injury or death. Any such amendment shall not include any amendment modifying the designation on a comprehensive development plan land use map nor any amendment modifying the allowable densities or intensities of any land. (n A comprehensive plan amendment to adopt a public educational facilities element pursuant to s. 163.31776 and future land-use-map amendments for school siting may be approved notwithstanding statutory limits on the frequency of adopting plan amendments. <Text of subsec. (1)(m) added by Laws 2004, c. 2004-230, § 3, el'f. May 25, 2004> (m) A comprehensive plan amendment that addresses criteria or compatibility of land uses adjacent to or in close proximity to military installations in a local government's future land use element does not count toward the limitation on the frequency of the plan amendments. <Text of subsec. (1)(m) added by Laws 2004, c. 2004-372, § 5, eff. July 1, 2004> (m) Any local government comprehensive plan amendment establishing or implementing a rural land stewardship area pursuant to the provisions of s. 163.3177(11)(d). Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 6 of 11 West's F.S.A. § 163.3187 Page 5 (2) Comprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to s. 163.3177(2). Corrections, updates, or modifications of current costs which were set out as part of the comprehensive plan shall not, for the purposes of this act, be deemed to be amendments. (3)(a) The state land planning agency shall not review or issue a notice of intent for small scale development amendments which satisfy the requirements of paragraph (1)(c). Any affected person may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57 to request a hearing to challenge the compliance of a small scale development amendment with this act within 30 days following the local government's adoption of the amendment, shall serve a copy of the petition on the local government, and shall furnish a copy to the state land planning agency. An administrative law judge shall hold a hearing in the affected jurisdiction not less than 30 days nor more than 60 days following the filing of a petition and the assignment of an administrative law judge. The parties to a hearing held pursuant to this subsection shall be the petitioner, the local government, and any intervenor. In the proceeding, the local government's determination that the small scale development amendment is in compliance is presumed to be correct. The local govemment's determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of this act. In any proceeding initiated pursuant to this subsection, the state land planning agency may intervene. (b)1. If the administrative law judge recommends that the small scale development amendment be found not in compliance, the administrative law judge shall submit the recommended order to the Administration Commission for final agency action. If the administrative law judge recommends that the small scale development amendment ""' be found in compliance, the administrative law judge shall submit the recommended order to the state land planning agency. 2. If the state land planning agency determines that the plan amendment is not in compliance, the agency shall submit, within 30 days following its receipt, the recommended order to the Administration Commission for final agency action. If the state land planning agency determines that the plan amendment is in compliance, the agency shall enter a final order within 30 days following its receipt of the recommended order. (c) Small scale development amendments shall not become effective until 31 days after adoption. If challenged within 30 days after adoption, small scale development amendments shall not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining the adopted small scale development amendment is in compliance. (4) Each governing body shall transmit to the state land planning agency a current copy of its comprehensive plan not later than December 1, 1985. Each governing body shall also transmit copies of any amendments it adopts to its comprehensive plan so as to continually update the plans on file with the state land planning agency. (5) Nothing in this part is intended to prohibit or- limit the authority of local governments to require that a person Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 7 of 11 Page 6 West's F.S.A. § 163.3187 requesting an amendment pay some or all of the cost of public notice. (6)(a) No local government may amend its comprehensive plan after the date established by the state land planning agency for adoption of its evaluation and appraisal report unless it has submitted its report or addendum to the state land planning agency as prescribed by s. 163.3191, except for plan amendments described in paragraph (1)(b) or paragraph (1)(h). (b) A local government may amend its comprehensive plan after it has submitted its adopted evaluation and appraisal report and for a period of 1 year after the initial determination of sufficiency regardless of whether the report has been determined to be insufficient. (c) A local government may not amend its comprehensive plan, except for plan amendments described in paragraph (1)(b), if the 1-year period after the initial sufficiency determination of the report has expired and the report has not been determined to be sufficient. (d) When the state land planning agency has determined that the report has sufficiently addressed all pertinent provisions of s. 163.3191, the local government may amend its comprehensive plan without the limitations imposed by paragraph (a) or paragraph (c). (e) Any plan amendment which a local government attempts to adopt in violation of paragraph (a) or paragraph (c) is invalid, but such invalidity may be overcome if the local government readopts the amendment and transmits the amendment to the state land planning agency pursuant to s. 163.3184(7) after the report is determined to be sufficient. CREDIT(S) Amended by Laws 1992, c. 92-129, § 8, eff. April 8, 1992; Laws 1993, c. 93-206, § 11, eff. July 1, 1993; Laws 1994, c. 94-273, § 4, eff. May 28, 1994; Laws 1995, c. 95-147, § 1446, eff. July 10, 1995; Laws ]995, c. 95-310, § 12, eff..iune I5, 1995; Laws 1995, c. 95-322, § 3, eff. June 15, 1995; Laws 1995, c. 95-396, § 5, eff. July 1, 1995; Laws 1996, c. 96- 205, § 1, eff. Oct. 1, 1996; Laws 1996, c. 96-410, § 27, eff. Oct. 1, 1996; Laws 1996, c. 96-416, § 4, eff. June 6, 1996; Laws 1997, c. 97- 253, § 3, eff. May 30, 1997; Laws 1998, c. 98-75, § 14, eff. July 1, 1998; Laws 1998, c. 98-176, § 13, eff. Oct. 1, 1998; Laws 1999, c. 99- 251, § 66, eff. July 1, 1999; Laws 1999, c. 99-378, § 5, eff. July 1, 1999; Laws 2000, c. 2000-151, § 26, eff. July 4, 2000; Laws 2000, c. 2000-158, § 16, eff. July 4, 2000; Laws 2000, c. 2000-284, § 1, eff. July 1, 2000; Laws 2002, c. 2002-296, § 8, eff. May 31, 2002; Laws 2004, c. 2004-230, § 3, eff. May 25, 2004; Laws 2004, e. 2004-372, § 5, eff. July 1, 2004. HISTORICAL AND STATUTORY NOTES Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 8 of 11 Page 7 West's F.S.A. § 163.3187 Derivation: Laws 1986, c. 86-191, § 10. Laws 1985, c. 85-55, § 9. Laws 1977, c. 77-331, § 5. Laws 1977, c. 77-174, § 1. Laws 1975, c. 75-257, § 10. CROSS REFERENCES Conservation, Wekiva Study Area, comprehensive plan amendments, see § 369.321. LAW REVIEW AND JOURNAL COMMENTARIES Transmission Line Siting Act--Balancing power and people. Lisa N. Mulhall, 20 Stetson L.Rev. 909 (1991). LIBRARY REFERENCES 2000 Main Volume Zoning and Planning x159. Westlaw Topic No. 414. C.J.S. Zoning and Land Planning § 73. NOTES OF DECISIONS Construction and application 1 Review 3 Transmittal to state land planning agency 2 1. Construction and application Landowners were entitled to small-scale amendment to city's comprehensive plan to change designation of their property from "preservation" to "medium to high, residential to tourist"; landowners presented unrebutted expert testimony, including testimony from city's own land planner, showing that designation of property as preservation was erroneous, as property did not meet definition of preservation. Island, Inc. v. City of Bradenton Beach, App. 2 Dist., 2004 WL 1389301 (2004). Zoning And Planning E~ 167.1 Challenge to local government's decision on small-scale development amendment may be commenced as original action in circuit court. Coastal Development of North Florida, Inc. v. City of .iacksonville Beach, 788 So.2d 204 Copr. ©West 2004 No Claim to Orig. U. S. Govt. Works Page 9 of 11 West's F.S.A. § 163.3187 (2001). zoning And Planning a 563.1 Page 8 Provisions of this section apply with equal force and effect to plans adopted pursuant to Part II of Ch. 163 prior to its amendment in 1985 as well as to plans adopted under the amended Act. Op.Atty.Gen. 86-36, May 6, 1986. All amendments to comprehensive plans in Hillsborough County must be submitted for review to Department of Community Affairs, local governing bodies must determine that Hillsborough County city-county planning commission has held public hearing on any such amendment prior to adoption, and no amendments to comprehensive plans in Hillsborough County require concurrence of four-fifths majority of governing body. Op.Atty.Gen. 86-16, Feb. ]4, 1986. A comprehensive plan adopted by local government subsequent to a deadline provided by § 163.3167 but prior to the adoption by another governmental body of a substitute plan is presumptively valid; however, once a substitute plan has been adopted for anon-complying jurisdiction the governing body of that local government may no longer adopt its own plan but may amend the one adopted for it. Op.Atty.Gen., 80-95, Dec. 5, 1980. In the event that a unit of local government fails to adopt a comprehensive plan as provided by the Local Government Comprehensive Planning Act, before the statutory deadline and the plan adopted by the county or administration commission becomes effective within that jurisdiction, that unit of local government still has the right to amend that plan and its designated local planning agency should perform all the functions assigned to that body. Op.Atty.Gen., 80-95, Dec. 5, 1980. 2. Transmittal to state land planning agency The board of county commissioners for Martin County is authorized by this section, to amend the future land use plan element or portion thereof of the previously adopted local comprehensive plan without transmitting such proposed amendment to the state land planning agency and the responsible regional planning agency for written comment if such proposed amendment involves less than five percent of the total unincorporated land area of the county. Op.Atty.Gen., 83-15, March 7, 1983. 3. Review The fairly debatable standard of review is a highly deferential standard requiring approval of a land use planning action if reasonable persons could differ as to its propriety. Island, Inc. v. City of Bradenton Beach, App. 2 Dist., 2004 WL 1389301 (2004). Zoning And Planning ~ 601 Small-scale development amendments sought pursuant to statute governing amendment to comprehensive plan are legislative decisions which are subject to the fairly-debatable standard of review. Island, Inc. v. City of Bradenton Beach, App. 2 Dist., 2004 WL 1389301 (2004). Zoning And Planning ~ 604 Small-scale development amendments are legislative decisions which are subject to fairly debatable standard of Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 10 of 11 Page 9 West's F.S.A. § 163.3187 review. Coastal Development of North Florida, Inc, v, City of Jacksonville Beach, 788 So.2d 204 (2001). Zoning And Planning E~ 604 Decisions regarding small-scale development amendments to comprehensive plan are legislative in nature and subject to the fairly-debatable standard of review. Minnaugh v. County Com'n of Broward County, 783 So.2d 1054 (2001). Zoning And Planning ~ 604 Decisions regarding Small Scale Comprehensive Plan Amendment (SSCPA) requests are legislative in nature, such that judicial review of such decisions is not by certiorari, but rather by a de novo hearing in an action seeking either declaratory or injunctive relief, subject to the "fairly debatable" standard of review. Board of County Com'rs of Clay County v. Qualls, App. I Dist., 772 So.2d 544 (2000), as amended, review denied 791 So.2d 1100. Zoning And Planning ~ 565; Zoning And Planning ~ 604; Zoning And Planning ~ 642 County commission's denial of landowners' application for small-scale development amendment to county's comprehensive plan was legislative and not quasi judicial, and thus, proper method of review was by an action seeking declaratory or injunctive relief, rather than by certiorari. Minnaugh v. County Com'n of Broward County, App. 4 Dist., 752 So.2d 1263 (2000), review granted 773 So.2d 56, approved 783 So.2d 1054. Zoning And Planning ~ 565 Decisions on requests for a small scale development amendment to a local comprehensive land use plan are legislative, and thus not subject to the certiorari review process, but reviewable by a de novo action seeking ^" declaratory or injunctive relief in circuit court, under the fairly debatable standard of review. Minnaugh v. County Com'n of Broward County, App. 4 Dist., 752 So.2d 1263 (2000), review granted 773 So.2d 56, approved 783 So.2d 1054. Zoning And Planning ~ 565; Zoning And Planning ~ 604; Zoning And Planning a 642 Town's zoning decision in response to landowner's application for small parcel comprehensive plan amendment was a "legislative function" not subject to certiorari review by circuit court; although amount of land involved was small, important policy concerns were implicated by its location on a major thoroughfare, close to the ocean, and perhaps near environmentally sensitive land. Fleeman v. City of St. Augustine Beach, App. 5 Dist., 728 So.2d 1178 (1998), certification granted. Zoning And Planning a 565 Denial or granting of asmall-parcel amendment to a comprehensive plan is a "legislative function" not subject to certiorari review by circuit court. Fleeman v. City of St. Augustine Beach, App. 5 Dist., 728 So.2d 1178 (1998), certification granted. Zoning And Planning E~ 565 Question, whether town's zoning decision in response to landowner's application for small parcel comprehensive plan amendment was legislative function not subject to certiorari review by circuit court, would be certified as one of great public importance. Fleeman v. City of St. Augustine Beach, App. 5 Dist., 728 So.2d 1178 (1998), certification granted. Courts a 216 West's F. S. A. § 163.3187, FL ST § 163.3187 Current through Chapter 472 and H..1.R. No. 1 and S.J.R. No. 2394 (End) of Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 11 of 11 Page 10 West's F.S.A. § 163.3187 the Eighteenth Legislature Copr. 4 2004 West, A Thomson business END OF DOCUMENT Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 2 of 8 ~tta~ 788 So.2d 204 788 So.2d 204, 26 Fla. L. Weekly 5224 (Cite as: 788 So.2d 204) N Briefs and Other Related Documents Supreme Court of Florida. COASTAL DEVELOPMENT OF NORTH FLORIDA, INC., etc., et al., Petitioners, v. CITY OF JACKSONVILLE BEACH, Respondent No. SC95686. April 12, 2001. Developers filed petition for writ of certiorari to review city's denial of developers' application for small-scale development amendment to city's comprehensive plan. After trial court granted petition and quashed city's denial of application, city sought certiorari review, The District Court of Appeal, Webster, J., 730 So.2d 792, reversed and remanded, finding that city's action was legislative, and certiiied question. The Supreme Court, Wells, C.J., addressing a novel issue, held that small-scale development amendments are legislative decisions which are subject to fairly debatable standard of review, Page I Small-scale development amendments are legislative decisions which are subject to fairly debatable standard of review. West's F.S.A. § 163.3187(1)(c). [3] Zoning and Planning x563.1 414k563.1 Most Cited Cases Challenge to local government's decision on small-scale development amendment may be commenced as original action in circuit court. [4) Zoning and Planning x565 414k565 Most Cited Cases Party challenging local government's decision on comprehensive plan amendment should file original action in circuit court, not petition for certiorari. *204 T. Geoffrey Heekin, S. Hunter Malin and Eric L. McAliley of Bartlett & Heekin, P.A., Jacksonville, FL, for Petitioners. *205 William S. Graessle of Winegeart & Graessle, P.A.; and Stephen Stratford, Jacksonville, FL, for Respondent. Donna E. Blanton of Steel, Hector & Davis LLP, Tallahassee, FL, for Florida Home Builders Association, Amicus Curiae. Approved and remanded with directions. West Headnotes [1] Zoning and Planning X601 414k601 Most Cited Cases Fairly debatable standard of review is highly deferential standard requiring approval of land use planning action if reasonable persons could differ as to its propriety. [2) Zoning and Planning x'604 414k604 Most Cited Cases WELLS, C.J. [1 ] We have for review a decision on the following question certified to be of great public importance: ARE DECISIONS REGARDING SMALL-SCALE DEVELOPMENT AMENDMENTS PURSUANT TO SECTION 163.3187(1)(c), FLORIDA STATUTES, LEGISLATIVE IN NATURE AND, THEREFORE, SUBJECT TO THE FAIRLY DEBATABLE STANDARD OF REVIEW; OR QUASI-JUDICIAL, AND SUBJECT TO STRICT SCRUTINY? Ciry of Jacksonville Beach v. Coastal Copr. m West 2004 No Claim to Orig. U.S. Govt. Works a --~~~ 1• .~. Coastal Development v. CitX of Jax. Page 3 of 8 788 So.2d 204 788 So.2d 204, 26 Fla. L. Weekly 5224 (Cite as: 788 So.2d 204) Development of North Florida, Inc., 730 So.2d 792 (Fla. 1st DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question by holding that the small-scale development amendment decisions made pursuant to section 163.3187(1)(c), Florida Statutes (Supp.l996), are decisions which are legislative in nature and subject to the "fairly debatable" standard of review. [FN1] We approve the decision below. FN1. As we said in Martin County v. Yusem, 690 So.2d 1288 (F1a.1997): The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. In other words, an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity. Id. at 1295 (citations and initial quotation marks removed). PROCEDURAL HISTORY Coastal Development of North Florida, Inc. (Developers), applied to the City of Jacksonville Beach (City) for a small-scale development amendment to the City's comprehensive plan pursuant to section 163.3187(1)(c), Florida Statutes (Supp.1996). [FN2] Developers wanted to commercially develop 1.7 acres of a parcel of land they own in the City. The proposed amendment sought to change the site's designation on the City's future land use map from "Residential-Low Density" to "Commercial Professional Office." The Jacksonville Beach City Council followed the recommendation of the City's Planning Commission and denied the proposed amendment. Developers petitioned the circuit court for a writ of certiorari and, alternatively, commenced an action for declaratory and injunctive relief. FN2. Section 163.3187(1)(c) establishes conditions under which local governments Page 2 may adopt comprehensive plan amendments that are directly related to proposed small-scale development activities. The circuit court [FN3] observed that in Martin County v. Yusem, 690 So.2d 1288 (F1a.1997), this Court held that comprehensive plan amendment decisions by a local government are legislative in nature, but that *206 court also noted that we specifically declined to determine whether small-scale development amendments were as well. [FN4J The circuit court then acknowledged our opinion in Board of County Commissioners v. Snyder, 627 So.2d 469, 476 (F1a.1993), in which we held zoning changes of limited impact are quasi judicial in nature subject to "strict scrutiny" review. [FNS] The circuit court likened small-scale development amendments to rezoning requests and thus concluded that Snyder applied to this category of developments. [FN6] FN3. It appears that pursuant to procedures in the Fourth Judicial Circuit, a single circuit judge presides over first-tier certiorari review. The number of circuit judges presiding over first-tier certiorari review is not uniform throughout Florida's circuit courts. Some circuits have three-judge panels for such review. We recently referred the question of whether there should be a uniform procedure for first-tier certiorari review to the Rules of Judicial Administration Committee of The Florida Bar. See Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1094 (FIa.2000). FN4. In footnote 6 of Yusem, we said: We do note that in 1995, the legislature amended section 163.3187(1)(c), Florida Statutes, which provides special treatment for comprehensive plan amendments directly related to proposed small-scale development activities. Ch. 95-396, § 5, Laws of Fla. We do not make any findings concerning the appropriate standard of review for these small-scale development Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works °` 788 So.2d 204 788 So.2d 204, 26 Fla. L, Weekly S224 (Cite as: 788 So.2d 204) activities. Yusem, 690 So.2d at 1293 n. 6. FNS. This Court in Snyder stated that strict scrutiny in the land use context must be distinguished from constitutional strict scrutiny. In the land use context, strict scrutiny generally means strict compliance with the comprehensive plan. See Snyder, 627 So.2d at 475. FN6. While we disagree with his conclusion, Circuit Judge Charles O. Mitchell, Jr., is commended for his thorough analysis provided in his order granting certiorari. See Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, No. 97-000079-AP (Fla. 4th Cir. Ct., order dated June 30, 1998). The circuit court concluded, as a matter of law, that: (1) a local government acts in a quasi judicial rather than legislative manner when acting on small-scale development amendment requests; (2) on review, quasi-judicial decisions are subject to strict scrutiny and must be supported in the record by competent, substantial evidence; and (3) certiorari review- is appropriate to review quasi judicial decisions made by local governments. Applying the strict scrutiny standard, the circuit court found that the City's action was not supported by competent, substantial evidence. Thus, the circuit court granted the petition for certiorari, quashed the City's decision denying the Developers' application, and ordered the City to grant Developers' application. The City petitioned the First District Court of Appeal for second-tier certiorari review. On review in the First District, the First District granted the City's petition for the writ and held that decisions regarding small-scale development requests made pursuant to section 163.3187(1)(c) are legislative decisions. See Coastal Development, 730 So.2d at 794-95. Thus, the First District held review of such decisions is by a de novo action in the circuit court subject to the deferential "fairly Page 3 debatable" standard of review. See id. The First District reasoned that all comprehensive plan amendment requests involve policy formation rather than application because all comprehensive plan amendment requests, regardless of size, require the governmental entity to determine whether it is socially desirable to reformulate policy. See id. at 794. The First Distract also found that this Court in Yusem desired to bring predictability to this area of law by mandating a uniform approach to all comprehensive plan amendment requests. See -id. Accordingly, the First District granted the petition for certiorari, reversed the circuit court, remanded the case for a de novo hearing on the Developers' alternative action for declaratory and injunctive relief, and certified the question to this Court. See id. This review follows. ANALYSIS [2][3] In Yusem, we described the process for amending a local government's *207 comprehensive plan, and we also noted the involvement of the Department of Community Affairs (Department) in this process. Yusem, 690 So.2d at 1294-95. The Department is the designated state land planning agency [FN7] under the Local Government Comprehensive Planning and Land Development Regulation Act (the Act). [FN8] The amendment process entails, among other things, an integrated review process involving a mandatory review by the Department. See Yusem, 690 So.2d at 1294. A local government must conduct two advertised public hearings on each proposed amendment prior to its adoption. [FN9] A local government may only amend its comprehensive plan twice a year. [FN10] FN7. See § 163.3164(20), Fla. Stat. (1995). FN8. See § § 163.3161-.3243, Fla. Stat. (1995), et. seq. FN9. See § 163.3184(15)(b), Fla. Stat. (Supp.1996). FN10. See § 163.3187(1), Fla. Stat. (Supp.1996). Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 5 of 8 788 So.2d 204 788 So.2d 204, 26 Fla. L. Weekly 5224 (Cite as: 788 So.2d 204) The process of adopting small-scale development amendments is somewhat different. Section 163.3187(1)(c) describes the process of proposing and adopting a small-scale development amendment. Unlike regular comprehensive plan amendments, small-scale development amendments only require one reading for adoption by the local govemment, [FN11] are not constrained by the two-amendments-per-year rule, (FN12] and are not subject to mandatory review by the Department. [FN13] Administrative review still exists in which "any affected person" may challenge the adopted amendment for compliance with the Act. [FN14] The Department has standing to intervene in these administrative hearings. [FN15] FN11. See § 163.3187(1)(c)3., Fla. Stat. (Supp.1996). FN12. See § 163.3187(1)(c), Fla. Stat. (Supp.1996). FN13. See § 163.3187(3)(a), Fla. Stat. (Supp.1996). FN14. See § 163.3187(3)(a), Fla. Stat. (Supp,1996). FNIS. See § 163.3187(3)(a), Fla. Stat. (Supp.1996). Proposals eligible for treatment as small-scale development amendments are limited to properties that, among other things: are ten acres or fewer; have not been subject to an amendment within the previous year; are no closer than 200 feet from any property of the same owner granted a change within the previous year; and are not located within an area of critical state concern. [FN16] A local govemment is limited to a cumulative acre limit per year of total area within that government's boundaries that may be subject to small-scale amendments. [FN17] A small-scale amendment may not involve a change to the textual goals, policies, or objectives of the comprehensive plan. [FN18] Page 4 FN16. See § 163.3187(1)(c)1., Fla. Stat. (Supp,1996). FN17. See § 163.3187(I)(c)l.a., Fla. Stat. (Supp.1996). FN18. See § 163.3187(1)(c)l.d., Fla. Stat. (Supp.1996). Section 163.3187(1)(c)l.d. states: The proposed amendment does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to .the. future land use map for asite-speck small scale development activity. A comprehensive plan is composed of several elements. [FN19] One element of the comprehensive plan is the future land use *208 element. [FN20] The future land use element designates "proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and privates uses of land." [FN21] The future land use map (PLUM) is a component of the future land use element of the comprehensive plan. See Yusem, 690 So.2d at 1292. The PLUM is a pictorial depiction of the future land use element and is supplemented by written "goals, policies, and measurable objectives." [FN22] The PLUM must be internally consistent with the other elements of the comprehensive plan. [FN23) FN19. See § 163.3177, Fla. Stat. (Supp.1996). FN20. See § 163.3177(6), Fla. Stat. (Supp.1996). Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 6 of 8 788 So.2d 204 788 So.2d 204, 26 Fla. L. Weekly 5224 (Cite as: 788 So.2d 204) FN21. § 163.3177(6)(a), Fla. Stat. (Supp.1996). FN22. § 163.3177(6)(a), Fla. Stat. (Supp.1996). FN23. See § 163.3177(2), Fla. Stat. (Supp.1996). In Yusem, we held that all comprehensive plan amendments are legislative decisions. See Yusem, 690 So.2d at 1295. At that time, we expressly declined to pass upon small-scale development amendments, as that issue was not before us. See id. at 1293 n. 6. Subsequent to our decision in Yusem, four of the five district courts have held that small-scale development amendments are legislative in nature and subject to the fairly-debatable standard of review. [FN24] FN24. See Minnaugh v. County Comm'n of Broward County, 752 So.2d 1263 (Fla. 4th DCA 2000), review granted, No. SC00-875, 773 So.2d 56 (F1a.2000); Palm Springs Gen. Hosp., Inc. v. City of Hialeah Gardens, 740 So.2d 596 (Fla. 3d DCA 1999); City of Jacksonville Beach v. Coastal Dev. of North Florida, Inc., 730 So.2d 792 (Fla. 1st DCA 1999); Fleeman v. City of St. Augustine Beach, 728 So.2d 1178 (Fla. 5th DCA 1998). We based our holding in Yusem on several factors. First, we concluded that because the original adoption of the comprehensive plan by a local government was a legislative act, it naturally followed that a proposed modification of that comprehensive plan was likewise legislative in nature. See id. at 1294. Second, the integrated review process by several levels of government indicates that an action on a comprehensive plan amendment is a policy decision. See id. Third, section 163.3184(10)(a) mandates that the fairly-debatable standard of review applies in an administrative hearing to determine compliance with the Act. See id. at 1295. Fourth, the holding Page 5 would remove uncertainty and promote uniformity in the land-use law context. See id. We conclude that same reasoning applies here, and we see no reason to deviate from it. Developers contend that a primary distinction between small-scale developments and the developments covered by Yusem is that small-scale developments involve changes to the FLUM which do not alter the textual goals, policies, and objectives of a local govemment's comprehensive plan and are thereby more similar to zoning applications covered by Snyder. We do not agree. Rather, we find the following analysis to be persuasive: [A]mendments to a legislatively adopted statement of general policy are legislative acts. Even if the comprehensive plan amendment consists of an amendment to the comprehensive plan's future land use map which is applicable only to a single tract of land, the amendment should be deemed legislative. The future land use plan map alone does not determine or control the uses which can be made of a particular tract of land. Rather, the comprehensive plan as a whole, including the future land use map *209 and all of the other policies of the plan, consists of legislative policies that must be applied to determine what uses can be made of a specific tract of land. Thomas G. Pelham, Quasi-Judicial Reaonings: A Commentary on the Srryder Decision and the Consistency Requirement, 9 J. Land Use & Envtl. L., 243, 300-301 (1994). The FLUM is part of the comprehensive plan and represents a local government's fundamental policy decisions. Any proposed change to that established policy likewise is a policy decision. The FLUM itself is a policy decision. A decision that would amend the FLUM requires those policies to be reexamined, even though that change is consistent with the textual goals and objectives of the comprehensive plan. Therefore, the scope of the proposed change is irrelevant because any proposed change to the FLUM requires a reexamination of those policy considerations and not an application of those policies. By its very nature, a proposed amendment to the FLUM, as an element of the comprehensive plan, Copr. m West 2004 No Claim to Orig. U.S. Govt. Works Page 7 of 8 788 So.2d 204 788 So.2d 204, 26 Fla. L. Weekly 5224 (Cite a~: 788 So.2d 204) requires policy reformulation because the amendment seeks a change to the FLUM. However, a proposed zoning change under Snyder must be consistent with the FLUM, thus requiring policy application instead of policy reformulation. See Snyder, 627 So.2d at 475. The First District noted the distinction between policy reformulation and application. We approve the First District's thoughtful opinion on this point: It seems to us that all comprehensive plan amendment requests necessarily involve the formulation of policy, rather than its mere application. Regardless of the scale of the proposed development, a comprehensive plan amendment request will require that the governmental entity determine whether it is socially desirable to reformulate the policies previously formulated for the orderly future growth of the community. This will, in turn, require that it consider the likely impact that the proposed amendment would have on traffic, utilities, other services, and future capital expenditures, among other things. That is, in fact, precisely what occurred here. Such considerations are different in kind from those which come into play in considering a rezoning request. Coastal Development, 730 So.2d at 794 (emphasis added). The lack of mandatory Department oversight does not alter our conclusion. While small-scale development amendments do not undergo the extensive integrated review process we described in Yusem, there are still administrative remedies available to any aggrieved party in the small-scale development amendment context that are not available in the zoning context. [FN25) The Department may also intervene in these administrative hearings. See § 163.3187(3)(a), Fla. Stat. (Supp.1996). Additionally, our conclusion in this case reinforces our policy underlying Yusem, which was to promote uniformity and certainty in land use planning decisions. See Yusem, 690 So.2d at 1295. FN25. Section 163.3187(3)(a) confers standing in these administrative hearings to any "affected person" as broadly defined by section 161.3184(1)(a), without the Page 6 need to allege an injury. Conversely, when challenging a zoning decision, an affected person must allege an injury. See § 163.3215, Fla. Stat. (1995). [4] As we stated in Yusem, a party challenging a local government's decision on a comprehensive plan amendment should file an original action in the circuit court and not a petition for certiorari. See Yusem, 690 So.2d at 1295. The circuit judge, in his order granting certiorari, made an alternative finding that, even if *210 the fairly-debatable standard applied, the City failed to meet that burden in this case. However, the circuit court's conclusion on this point was improper because the circuit court made this finding only upon a review of the record and not in a de novo action. Thus, remand is proper to allow the circuit court to proceed with the Developers' alternative action for declaratory and injunctive relief. CONCLUSION We answer the certified question by holding that small-scale development amendments sought pursuant to section 163.3187(1)(c) are legislative decisions which are subject to the fairly-debatable standard of review. A challenge to a local govemment's decision on a small-scale development amendment may be commenced as an original action in the circuit court. We approve the decision under review and remand with directions that the circuit court proceed on the Developers' alternative action for declaratory and injunctive relief in a manner consistent with this opinion. It is so ordered. SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. 788 So.2d 204, 26 Fla. L. Weekly 5224 Briefs and Other Related Documents (Back to top) • 1999 WL 33627291 (Appellate Brief) Amended Answer Brief of the Respondent, the City of Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 8 of 8 788 So.2d 204 788 So.2d 204, 26 Fla. L. Weekly 5224 Page 7 (Cite as: 788 So.2d 204) Jacksonville Beach, Florida (Aug. 27, 1999) END OF DOCUMENT Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 2 of 6 ;~ ~+~VS: 2004 WL 1389301 --- So.2d --- (Cite as: 2004 WL 1389301 (FIa.App. 2 Dlst.)) NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. District Court of Appeal of Florida, Second District. ISLAND, INC., a Florida corporation, and Beach Development, Inc., a Florida corporation, Appellants, v. The CTTY OF BR.ADENTON BEACH, a Florida municipal corporation, Appellee. No. 2D03-3628. June 23, 2004. Background: Landowners appealed city commission decision denying petition to amend comprehensive plan to permit construction of duplex on property. The Circuit Court, Manatee County, Charles E. Williams, J., affirmed. Landowners appealed. Holding: The District Court of Appeal, Whatley, J., held that landowners were entitled to small scale amendment to change designation of their property on comprehensive plan. Reversed and remanded. Villanti, J., concurred specially and filed opinion. Casanueva, J., dissented and filed opinion. [1] Zoning and Planning X604 414k604 Most Cited Cases Page 1 Small-scale development amendments sought pursuant to statute governing amendment to comprehensive plan are legislative decisions which are subject to the fairly-debatable standard of review. West's F.S.A. § 163.3187(1)(c). [2] Zoning and Planning x'601 414k601 Most Cited Cases The fairly debatable standard of review is a highly deferential standard requiring approval of a land use planning action if reasonable persons could differ as to its propriety. (3] Appeal and Error X893(1) 30k893(1) Most Cited Cases Appellate court reviews the trial court's application of the fairly debatable standard de novo. [4] Appeal and Error x1010.1(5) 30k1010.1(5) Most Cited Cases The "fairly debatable" standard of review rule is a rule of reasonableness. [5] Zoning and Planning x167.1 414k167.1 Most Cited Cases Landowners were entitled to small-scale amendment to city's comprehensive plan to change designation of their property from "preservation" to "medium to high, residential to tourist"; landowners presented unrebutted expert testimony, including testimony from city's own land planner, showing that designation of property as preservation was erroneous, as property did not meet definition of preservation. West's F.S.A. § 163.3187(1)(c). John P. Harllee, III, and Brian L. Triinyer of Harllee & Bald, P.A., Bradenton, for Appellants. Gregory W. Hootman of Gregory W. Hootman, P.A., Sarasota, for Appellee. Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works ~ ~ 3. Island, Inc. v. City of Bradenton Beach Page 3 of 6 2004 WL 1389301 --- So.2d --- (Cite as: 2004 WL 1389301 (F1a.App. 2 Dist.)) WHATLEY, Judge. *1 Island, Inc. and Beach Development, Inc. appeal the final judgment affirming the denial by the City Commission of the City of Bradenton Beach of their petition for two small-scale development amendments to the City's comprehensive plan. [FN1] The Appellants sought the amendments to change the designation of their property on the future land use map of the City's comprehensive plan from preservation, a classification which permits no development, to medium/high residentiaUtourist in order to construct a duplex on each of their two lots. We reverse. (1][2J[3][4] "[S]mall-scale development amendments sought pursuant to section 163.3 ] 87(1)(c) are legislative decisions which ar-e subject to the fairly-debatable standard of review." Coastal Dev. of N. Fla., Inc. v. Ciry of Jacksonville Beach, 788 So.2d 204, 210 (F1a.2001). "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." Martin County v. Yusem, 690 So.2d 1288, 1295 (FIa.1997). This court reviews the trial court's application of the fairly debatable standard de novo. Martin County v. Section 28 P'ship, Ltd., 772 So.2d 616 (Fla. 4th DCA 2000). The "fairly debatable" -ule is a rule of reasonableness. Lee County v. Sunbelt Equities, 11, Ltd. P'ship, 619 So.2d 996, 1002 (Fla. 2d DCA 1993). [5] The trial court erred in finding that, based on the evidence that was before the City Commission at the public hearing on the Appellants' petition, the City's denial of the Appellants' petition was fairly debatable. The Appellants presented expert testimony, including from the City's own land planner, showing that the designation of the Appellants' property as preservation was erroneous because the property did not meet the definition of preservation. They also presented evidence, and the trial court found, that Manatee County had taxed the property as R-3, i.e., residential, property, and the mayor's son had been issued a license to operate a sailboat rental business on the property, which activity is not allowed on preservation property. The City, on the other hand, presented only the testimony of neighboring property owners and individuals who had been on either the City Page 2 Commission or the Citizens' Advisory Council at the time the comprehensive plan was formulated and adopted or who were on the City Commission at the time the Appellants' petition was denied. Although these individuals testified that the City intended for the property to be designated preservation and maintained as open space, they presented no testimony rebutting the expert testimony that the property did not meet the definition of preservation. Cf. Section 28 P'ship, Ltd., 772 So.2d 616 (holding that developer did not meet its burden to show that County's action in denying its petition to amend comprehensive plan was so unreasonable and capricious as to not be fairly debatable in face of County's overwhelming evidence, including testimony from prominent experts, supporting its decision). *2 We conclude that the trial court erred in finding, based on the evidence that was before the City Commission at the public hearing on the Appellants' petition, that the City's denial of the Appellants' petition was fairly debatable. Reasonable persons could not differ in concluding that the Appellants were entitled to a small-scale amendment to the comprehensive plan because their property was improperly designated preservation. Accordingly, we reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. VILLANTI, J., Concurs specially with opinion. CASANUEVA, J., Dissents with opinion. VILLANTI, Judge, Concurring specially. While recognizing the stringent requirements of the fairly debatable rule as eloquently set forth by the dissent, if there ever were a case in which the standard were to apply in favor of the landowner, this is that case. The underlying testimony was dominated by expert opinion germane to more than one topographical issue, including whether the soil content of the subject parcel was composed of the Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 4 of 6 2004 WL 1389301 --- So.2d --- (Cite as: 2004 WL 1389301 (FIa.App. 2 Dist.)) type that made it eligible to receive preservation classification. Absolutely all of the expert opinion and supporting data was unrefuted; i.e., that the preservation classification was imposed in error. See State Dept of Transp. v. Myers, 237 So.2d 257, 261 (Fla. 1st DCA 1970). The citizens' input regarding their recollections and personal preferences for the uses, if any, to be made of the owner's land was simply conclusory in nature and insufficient here to overcome the objective and unrefuted expert input. Thus, in my view the fairly debatable rubicon was crossed long ago, and hence I fully concur in the majority opinion. CASANUEVA, .Tudge, Dissenting. Because I am not persuaded that our standard of review permits reversal in this case, I respectfully dissent. In Coastal Development, 788 So.2d at 205, the Florida Supreme Court held that "the small-scale development amendment decisions made pursuant to section 163.3187(])(c), Florida Statutes (Supp.1996), are decisions which are legislative in nature and subject to the 'fairly debatable' standard of review." The court further- defined "fairly debatable standard of review" as a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. In other words, an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity. Id. at n. 1 (quoting Martin County, 690 So.2d at 1295 (citations deleted)). Thus, where reasonable persons could differ as to the propriety of the planning action, it should be affirmed. The Coastal Development case addressed a split among the dish•ict courts concerning the vehicle for and scope of review of the denial of a petition to amend a comprehensive plan. The question was whether the circuit court could exercise only its limited certiorari jurisdiction or could conduct a trial de novo. The supreme court concluded that a "challenge to a local government's decision on a Page 3 small-scale development amendment may be commenced as an original action in the circuit court," Coastal Development, 788 So.2d at 210, and remanded for the circuit court to proceed on Coastal Development's action for declaratory and injunctive relief. *3 Therefore, in the original declaratory judgment action in the circuit court in this case, the trial court received and validly considered evidence in addition to the cold record of the various public hearings leading to the City's action. On our review, this court must decide whether, as a matter of law, the City's exercise of its legislative authority was at least fairly debatable. See Section 28 P'ship, 772 So.2d at 619. In assessing whether the circuit court's decision was legally correct, this court is no less constrained by the fairly debatable standard than was the circuit court and must also afford a high degree of deference to the governmental body's legislative decision. With those principles in mind, I would affirm the circuit court. Legislative decisions necessarily involve policymaking decisions or formulations. In this context, the City was required to decide whether to amend its established growth policies or to preserve the status quo, which necessitated an evaluation of "whether the small-scale development amendment being proposed meets the future land use and needs of the community." Fleeman v. City of St. Augustine Beach, 728 So.2d 1178, 1180 (Fla. 5th DCA 1998). For the circuit court to conclude that the City's decision was arbitrary and capricious, the Appellants carried the considerable burden of proving that the City's action was not based on any evidence that a reasonable mind would accept to support its conclusion. See Smith v. City ojW. Palm Beach, 756 So.2d 166, 167 (Fla. 4th DCA 2000) (citing Town ojlndialantic v. Nance, 400 So.2d 37, 40 (Fla. 5th DCA 1981), approved, 419 So.2d 1041 (F1a.1982)). To support their position, the Appellants focused on the lack of expert testimony before either the City Commission or the circuit court demonstrating that the designation of the property as "preservation" on the future land use map (PLUM) was appropriate. In the future land use section, the comprehensive plan describes the preservation land use category as follows: Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 5 of 6 2004 WL 1389301 --- So.2d --- (Cite as: 2004 WL 1389301 (FIa.App. 2 Dist.)) The preservation Land Use Category is intended for areas considered to be vital for the maintenance and recharge of water resources, areas of unique or valuable topographic or subsurface features, and areas of significant environmental or ecological importance (e. g., coastal beach soils) which should be preserved. The Appellants contend that the City did not and could not rebut its expert evidence that the primary determinant for whether property was designated preservation in the comprehensive plan depended upon its soil type, specifically, that lands containing what ar•e known as "beach soils" were to be designated as preservation. Their experts asserted that the property proposed to be developed did not contain beach soils or beach sands. Other experts and officials opined that the area was not topographically, environmentally, or ecologically unique. Based upon this evidence, a consultant and a City planning official both determined that the preservation designation either derived from a scrivener's error in the drawing of the map or was predicated upon incorrect data. *4 In support of the denial of the petition, concerned neighbors and commissioners commented at the public hearing that granting the amendment would be inconsistent with the express goals and policies of the comprehensive plan. At the de novo trial on the petition for declaratory judgment, the City developed additional evidence concerning those goals. When the comprehensive plan was being formulated, a prime consideration behind designation of this particular property as preservation was to promote the general public policy of controlling beach erosion, a significant issue for the City of Bradenton Beach then and now. Members of the committee responsible for developing the plan walked up and down the beaches and designated the area preservation because of the dune construction on that site. That part of the beach had always been known as a "hot spot," where water would come across the road, not only during storms but with high tides; and the dunes helped minimize intrusion of water into the road. These witnesses rebutted any notion that the map had been incorrectly drawn. In addition, a commissioner at the time the City enacted the comprehensive plan ordinance testified that the area was designated preservation not only Page 4 to minimize beach erosion but also to achieve the City's goal of obtaining grants for renourishing the beaches. A prerequisite to the beach renourishment grants is that the public be afforded as much access to and view of the water as possible. Another commissioner stated that he voted against this petition based upon his personal knowledge of the City's shorelines, particularly in the affected area. The Appellants' expert evidence had not overridden his concem for the health, safety, and welfare of neighboring citizens whose property might be subject to flooding if the Appellants' property were developed. This very brief summary of the evidence leads me to the inescapable conclusion that the denial of the petition emanated from the City's valid exercise of its legislative powers. The Appellants have promoted a far too limited concept of the legislative powers of a city faced with a petition to amend its comprehensive plan. And, in reversing the circuit court, the majority has failed to afford the City the high degree of deference that appellate courts are required to pay governmental bodies when reviewing their legislative, policy-driven decisions. By concentrating on the definition of preservation,' the Appellants have ignored .the fact that the FLUM is only one component of any comprehensive plan: The future land use element designates "proposed general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land." ... The FLUM is a pictorial depiction of the future land use element and is supplemented by written "goals, policies, and measurable objectives." The FLUM must be internally consistent with the other elements of the comprehensive plan. *5 Coastal Dev., 788 So.2d at 208 (citing, in nn, 20-21, § 163.3177(6)(a), (7), Fla. Stat. (Supp.1996) ). Furthermore, "the comprehensive plan as a whole, consists of legislative policies that must be applied to determine what uses can be made of a specific tract of land." Thomas G. Pelham, Quasitiludicial Rezonings, 9 J. Land Use & Envtl. Law 282, 300 (1994), cited in Martin County v. Yusem, 664 So.2d 976, 981 (Fla. 4th DCA 1995) (Pariente, J., Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Page 6 of 6 2004 WL 1389301 --- So.2d --- (Cite as: 2004 WL 1389301 (Fla.App. 2 Dist.)) dissenting). Although I would hold that it is at least arguably debatable that the property in question was appropriately designated preservation on the narrow ground that it was within an area of "valuable topographic or subsurface features" and that it was an area "of significant environmental ... importance," I do not believe that the issue in this case was so limited. Like the Fourth District in Section 28 Partnership, 772 So.2d at 620, this court should consider whether the City presented any evidence, beyond a fair debate, that its decision to maintain the status quo in the land use plan was "reasonable from a planning, economic, environmental, and fiscal responsibility standpoint." Thus, appropriate evidence before the City and the circuit court could and did include other aspects of the City's legislative decision to deny the amendment, such as its legitimate interests in keeping the area undeveloped to accomplish its goals of diminishing beach erosion, minimizing flooding, preserving dune systems, encouraging the renourishment of its beaches, maintaining open areas, controlling traffic in the event of major storms, and limiting property damage from potential flooding. The goals and policies the witnesses described are explicitly delineated in the comprehensive plan, and the FLUM is consistent with the other elements of the plan. For instance, the glossary describes "preservation" as "[a]reas that need to be protected" and provides some examples of that concept, including "systems peculiar to the region ... such as beach and dune systems fronting the Gulf of Mexico." The executive summary to the plan describes "a number of unique ecosystems that can be found in the vicinity of the City of Bradenton Beach. This includes the Gulf side beaches and associated dune vegetation...." Throughout the plan ar-e references to the difficulties the Ci[y has faced with erosion of its beaches, the need to engage in beach renourishment projects, and its experience with flooding caused by tides and major storms. The explicit goal behind the plan's policies is to maintain the primarily residential character of this barrier island city while preserving one of its most significant features--its beaches. Finally, there is evidence in the record that the City Page 5 considered the development rights of the owners of affected properties when it enacted the preservation designation. Essentially, in its effort to preserve the beaches, the City gave the owners the right to build developments of greater density on the bay side than on the gulf side. Thus, even though the City's action, in my view, constituted a lawful exercise of its legislative authority, to the extent that the City's decision also constituted a taking without just compensation and deprived the Appellants of all economically viable use of its land, the Appellants could maintain an action for inverse condemnation, provided that they have standing to do so. In such a case the City's burden would be significantly greater. Rather than relying simply on the validity of its exercise of legislative powers, the City would be required to identify specific principles of nuisance and property law that would prohibit the proposed use of the land without the payment of compensation. See Lucas v. S Caroli»a Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (]992). *6 In conclusion, I reiterate the opinion of the Fourth District in Section 28 Partnership, 772 So.2d at 621: "Where, as here, there is evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the [City's] decision was anything but 'fairly debatable.' " I would affirm the decision of the circuit court. FN1. Small-scale development amendments to comprehensive plans are governed by section 163.3187(1)(c), Florida Statutes (2003). 2004 WL 1389301 (F1a.App. 2 Dist.), 29 Fla. L. Weekly D1488 END OF DOCUMENT Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works Advising the. Client Regardin Prot of Propert Ri hts: g ection Y g Harris Act and Inverse Condemnation Claims by Susan L. Trevarthen his article addresses is- sues facing the real prop- erty practitioner in advis- ing clients on the protec- tion of their private property rights. Overviews of two particular aspects of property rights are provided: rights to compensation for an in- verse condemnation of property based on the Fifth and 14th amend- ments of the U.S. Constitution, and rights under Florida's statute pro- tecting private property rights, popularly known as the Harris Act. These are complex issues and the law is still evolving. In many cases, the real property practitioner would be well advised to retain special and use counsel to assist in deter- . 'Wing, securing, and protecting en- ~lements and in litigating those entitlements, if needed. Absent unusually strong facts, in- versecondemnation is rarely a viable claim and can result in significant expense and delay to the client. There are also significant barriers to suc- cess under the Harris Act unless a settlement can be achieved. The act seems to (and was explicitly intended to) provide a broader basis for relief than inverse condemnation. How- ever,the proper interpretation of the act is quite uncertain, and has not been clarified much by precedent to date. Thus, practitioners are advised to carefully weigh the potential gains against the potentia] costs of litiga- tion, in time and money, before ad- vising aclient to pursue either claim. Practitioners are advised to carefully weigh the potential gains against the potential costs of litigation, in time and money, before advising a client to pursue either claim. effect of a governmental action on its property is so devastating that it is the equivalent of the direct ex- ercise of eminent domain, and thus requires just compensation under the Fifth or 14th amendments. Such claims are also referred to as regu- latorytakings. In order to establish liability, the property owner must prove that it was deprived of all or substantially all economically ben- eficial use of its property, whether temporarily or permanently. There is a great deal of case law and com- mentary on inverse condemnation law; thus, this article's treatment of this claim is relatively brief. The typical land use regulation, even where it drastically interferes with use of property for a period of two or three years or revokes an existing use, is unlikely to be held to constitute a regulatory taking,' As an indication of just how sub- stantial this deprivation of use must be in order to establish a tak- ing, Justice Scalia (one of the most property rights-friendly justices on the Supreme Court) has stated that even a 95-percent reduction in value is not always sufficient to es• tablish liability.z Even what seem to be rather egregious facts may not be sufficient to establish liability.' Examples of successful claims in- clude those that can establish physical occupation of the property by the government, complete elimi- nation of use of the property, or elimination of access to the prop- erty.' Property owners with less extreme facts can try to establish liability under the balancing test of Penn Central 7~ansportation Com- pany u. City of New York, 438 U.S. 104 (1978).5 Claimants must exhaust their administrative remedies before bringing a takings claims Claim- ants must also prove that there has been a final decision as to the al- lowable uses of the property, so that the matter is ripe for judicial re- view.' However, on appropriate facts, a taking claim will be allowed to proceed even if not ripe if further review can be shown to be futile, such as where an adopted city policy forbids requested relief s The ripeness standard can be quite difficult to interpret and ap- ply, and difficult to satisfy. Several noteworthy cases have spent a de- cade or longer litigating whether the case is ripe, bouncing back and forth from federal to state court without ever reaching the merits. If the merits are reached, then the Inverse Condemnation Inverse condemnation is a claim made by a property owner that the THE FLORIDA BAR JOURNAL/JULY/AUGUST 2004 61 _4. Bert Harris Act article I property owner has a daunting task ` in establishing liability under the ~"~' prevailing constitutional test. For these reasons, I suggest that, unless unusual and extreme facts are present, it is very unlikely that the client will receive much relief from an inverse condemnation claim. The potential for ultimate success may be greater with the second type of claim I examine, a Harris Act claim. However, the uncertainty in the meaning of key statutory terms makes it likely that the litigation will be expensive and time-consum- ing, unless a settlement is reached. The Harris Act • The movement toward statutory private property rights protection Over the past 10 to 15 years, a wave of private property rights pro- tection legislation has swept the U.S. Marketed as grass roots initia- tives, but often backed heavily by industries dependent on the use of real property (including agriculture and land development) through the mechanism of "public interest" le- gal foundations, these statutes have attempted to severely limit what government can accomplish through exercise of its police power and greatly increase the types of regu- lation that can trigger compensa- tion.This property rights movement sought protection for landowners from what were perceived to be un- duly onerous environmental and land use regulations. Several efforts to enact federal legislation failed, but the effort to change the law via state legislatures met with much more success.9 More than 20 states have enacted private property protection laws, including Florida.10 They were de- signed to address the belief of some property owners that they are be- ing asked to bear a disproportion- ate share of the burdens of achiev- ingenvironmental and quality of life goals for the public at large through restrictive regulation of the use of their land. Some of the concern was based on a feeling that the federal taking standard was not protective enough, because compensation is not due under the U.S. Constitution The statutes have attempted to severely limit what government can accomplish through exercise of its police power and greatly increase the types of regulation that can trigger compensation. as interpreted by the federal courts unless there is a physical invasion of the property or all economically beneficial or productive use has been removed." This policy dis- agreement was exacerbated by the reluctance of the U.S. Supreme Court to reach the merits of takings cases and the lack of clear standards in taking law, A handful of famous taking cases languished in the state and federal courts for years, frus- trating affected plaintiffs and other property owners attempting to un- derstand the constitutional limits. The legislative response to these concerns took several forms. One followed the example of the Na- tional Environmental Protection Act (NEPA), which requires an assess- ment of environmental impacts prior to federal action, including an identification of alternative actions that may result in less impact on the environment. Private property rights activists adapted this model to develop legislation that required government to assess the impact of land use and environmental regu- lation on private property rights, and identify alternative forms of regulation that would be less bur- densome on those rights. This "as- aessment"model was adopted in the majority of states. A second form of legislation is characterized by a requirement for landowner compensation based on some defined diminution in value of 62 THE FLORIDA BAR JOURNAUJULY/AUGUST 2004 its property due to a burdensome regulation. The compensation model was adopted in a minority of states, including Florida. • Florida's Bert J. Harris, Jr., Pri- vate Property Rights Protection Act, F.S. §70.001 et seq. Much has been written on this act generally.12 For the most complete and up-to-date description of Florida's experience with the imple- mentation of this law, see the excel- lent chapter in the treatise pub- lished by the Environmental and Land Use Law Section of The Florida Bar.19 In general, it is im- portant to note that Ch. 70 actually contains two statutory schemes: the Harris Act (§70.001) and the Florida Land Use and Environmental Dis- pute Resolution Act (§70.51), a vol- untary dispute resolution process adopted at the same time as the Harris Act. Also, the 2002 Legisla- ture amended the Harris Act to add §70.20, which provides specific com- pensation rules and procedures for billboards and forbids future amor- tization of billboards. These materials will summarize the meager precedent that exists on the Harris Act, and then address more practical issues of litigation and negotiation under the act. 1) HarrisAct precedent. There are only a few reported appellate deci- sions construing the act, and none are from the Florida Supreme Court. An early attorney general's Opinion opined that the act could not be invoked by one whose prop- erty was only indirectly affected by governmental action, such as a neighbor seeking to complain about the effect of the next-door zoning on his or her property.'" The Fourth District determined that the failure to present an appraisal as required prior to filing suit, and the filing of suit prior to the end of the 180-day waiting period specified in the act requires dismissal of a Harris Act suit.15 The Fifth District held that an interlocutory appeal could not be taken from a trial court finding that the county and the Department of Environmental Protection had inor- dinately burdened a property by denying zoning and permits for a I landfill, despite provisions of the act to the contrary in §70.001(6)(a), be- cause only the Florida Supreme Court can establish new appellate rules governing such matters.ls Atrial court decision arising fi om citywide rezoning actions creating new height and density restrictions in Miami Beach held that sovereign immunity barred Harris Act claims against legislative or quasi-legisla- tive actions." Although the court's decision did not note it, §70.001(13) specifically provides that the Har- risAct "does not affect the sovereign immunity of government." The ruling attracted statewide interest. It seemed to be dictated by §70.001(13), but some argued that it nullifies the act completely and thus frustrates legislative intent. An alternate interpretation was that it simply limited the scope of govern- mental acts that may be challenged under the Harris Act, leaving the field open for challenges to nonlegislative actions. After all, waivers of immunity must be "clear and unequivocal"18 and the presence subsection (13) renders any al- ;ed waiver at best "equivocal." 't'his interpretation is consistent with the law governing rezonings and comprehensive plan amend- ments, after Snyder19 and Yusem20; only nonlegislative actions are sub- ject to stricter scrutiny and to a record-based certiorari challenge. It is also consistent with the statutory definition of governmental action as a "specific action affecting real prop- erty, including action on an applica- tion or permit."T1 Finally, the fact that the remedy under the Harris Act is not limited to monetary com- pensation means that the applica- tion of immunity does not defeat the effectiveness of the act. However, the Third District ruled that the waiver of sovereign immu- nity was clear from the legislative intent of the Harris Act.22 The city has sought Florida Supreme Court review, and plans to continue fight- ing this case and the half dozen oth- ers ending, all claiming millions of ~s in lost value. Additional im- nt precedent may well arise r our of these facts, The dispute resolution portion o Ch, 70 has also seldom been con strued in a reported appellate deci sion. The Second District held tha a letter accompanied by a scientist' field report suggesting that lan proposed for development might b a wetland was not a development or der subject to a special master pro- ceedings.23 That court also held that the circuit courts have no jurisdiction over the disposition of a pending ape. cial master24 proceeding even if they are hearing related civil litigation, such as a §1983 due process claim arising from the same facts.26 2) Litigation and negotiation is- sues with §70.001. The great irony of the Harris Act is that it sought to bring clarity to the admittedly muddled body of case law regarding regulatory takings and be more pro- tective of property rights by creat- ing aremedy for "inordinate bur- dens," an impact of regulation that explicitly falls short of the federal taking standard. Yet it uses, and in some case modifies, the same terms of art as federal taking case law to flesh out the meaning of "inordinate burden," while saying that the terms cannot be construed with ref- erence to that case law.28 Another paradox is that the definition of "ex- isting use" is not the plain meaning of that term but instead specifically includes future uses of the prop- eTtY•27 Similar problems exist with the act's attempts to clarify ripeness. It only allows as applied challenges, and fails to address whether the mere enactment of a generally ap- plicable ordinance can be the basis of an as applied challenge, without the owner first seeking a determi- nation on an actual development application. This confusion has been the su- preme challenge with the Harris Act, and could explain why there is not more precedent construing it. Regulators and property owners alike have thought twice before pro- ceeding with litigation, because the outcome is highly uncertain and there are loads of threshold inter- pretation issues that have yet to be esolved by the courts. The legisla- ive branch has available to it much 1 more expertise in the area of prop- erty regulation and valuation policy than does a federal judge. Yet the t legislative branch, not only in s Florida but also in other states, has d been unable to create more predict- s able and just rules for compensation in this area of law despite these in- herent advantages. These legisla- tive efforts, in a way, legitimate the federal Penn Central taking stan- dard.2B While its ad hoc nature can be frustrating to litigants (and to attorneys trying to advise their cli- ents), that very flexibility allows it to take into account the wide range of unique circumstances presented in taking claims. While the act appears to have leg- islated away the ripeness conun- drum, it is important to note that traditional ripeness concerns re- main. First, ripeness is an issue of subject matter jurisdiction, de- signed to determine whether there is a concrete controversy that the courts may decide. It remains to be litigated whether the legislative branch has the power to alter that basic judicial requirement. Second, ripeness is at heart a practical is- sue. If an owner brings a claim based on the mere enactment of an ordinance, how does one define the impact? In Royal World Metropoli- tan, Inc. u. City of Miami Beach, 863 So. 2d 320 (Fla. 3d DCA 2003), the claim involved a height limit, usu- ally arelatively clear-cut complaint (depending on how clearly the code defines the height of a building). But what if the effect of the regulation on a particular property cannot be determined without analysis, such as with an environmental restric- tion? Without the benefit of an ac- tual development application and expert staff review to determine how the general requirement ap- plies to a particular property, how can the impact of a density limita- tion be determined? It is common to find that a particular piece of prop- ertycannot develop to the maximum extent theoretically permitted by the code, when all of the setbacks, landscaping requirements, preser- vation of environmentally sensitive areas, traffic flow and parking re- THE FLORIDA BAR JOURNAUJULY/AUGUST 2004 63 quirements, etc., are taken into ac- count. In that event, the financial effect of a downzoning could be over- stated if it is measured with respect to the theoretical maximum density and not the density actually achiev- able on the property. The actual achievable density cannot be known until one does the work of applying the regulations to the property. If claims are to be al- lowed under the act based on the mere enactment of a general den- sity limitation, and the owner has not done this work, is the govern- ment now forced to site plan the property for the owner in order to fig- ure it out? That seems to go beyond what should reasonably be expected of government. And if the government fails to do so in its statutory ripeness determination, where does that leave the court in trying to understand what development is permissible on the property?29 The act incorporates Penn Central's concept of "reasonable in- vestment-backed expectations" as part of the definition of "existing use." This term also raises a host of issues in interpretation, perhaps best outlined by the 11th Circuit in Reahard u. Lee County,968 F. 2d 1131, 1135-36 (11th Cir. 1992). These include examining the history of the title of the property, the his- tory of development efforts, the his- tory of zoning and regulation appli- cable to the property, the present nature and extent of the property and adjacent properties, the appli- cation of common law constraints on development, and the immediate effect of the regulation being chal- lenged. The act also incorporates the no- tion of a reasonably foreseeable, yet nonspeculative use into the concept of "existing use." This could be in- terpreted as the appraisal concept of "highest and beat use," or perhaps as the Penn Central concept of "eco- nomicallyviable use." Or perhaps it could be argued that it accounts for Florida's comprehensive planning system, which allows the compre- `ensive plan designation on a par- cular property to exceed the actual zoning for the property, on the While the act may not result in as many headline-grabbing monetary awards as some of its proponents might have liked, it will continue to have quiet but significant impacts. theory that the full use contem- plated by the comprehensive plan might only be appropriate in the later years of the planning period. Snyder clearly recognizes the differ- ence between planning and zoning, and states that the government is not automatically obligated to zone for the full density or intensity per- mitted by the comprehensive plan. It also could be seen as an attempt to capture the effect of the neigh- boring use, as, for example, when a property with residential zoning and an existing single-family resi- dence is located next to an office park or regional mall.so Another important litigation is- sue with Harris Act claims is that the measure of monetary compen- sation is expressed not in terms of the basis of liability or various defi- nitions of inordinate burden and unfairness, but rather in terms of an appraisal of the fair market value of the property with and with- out the effect of the regulation.31 It is the total difference in value, not the amount which is alleged to be inordinate or unfair to the property owner, or which differs from the vested or existing use of the prop- erty. When there has been a small investment in the property, this compensation standard can yield a large return on investment well be- yond any definition of "reasonable investment-backed expectations." Accrual and expiration of claims 64 THE FLORIDA BAR JOURNALIJULY/AUGUST 2004 for relief is another part of the act's presenting a fair amount of uncer- tainty. The act purports to establish a one-year statute of limitations for presenting the claim to the govern- ment after the regulation is "first applied" to the property, followed by a 180-day delay to allow for the government's ripeness determina- tion, before actually filing the claim in court. But the problem is when is a regulation "first applied" to the property? Is it one year after the general enactment of the regulation or one year after it has been applied to the property through a govern- mental decision on a permit appli- cation? Is it inevitably measured from the first application for devel- opment, even if that application seeks only a portion of the density or intensity actually allowed by the code, thus time-barring any chal- lenge based on denial of a later ap- plication for the full permitted de- velopment? Also, though it is clear that the claim may not be filed in court until at least 180 days have elapsed from the presentation of the claim to the government, there is no deadline for filing the claim. The general statute of limitations thus applies, which is four years for a claim based on statutory liability3L Another timing issue relates to the act's exemption for governmen- tal regulations adopted or applied prior to May 11, 1995.33 The exemp- tion is muddied by the act's provi- sion that existing regulations, if sub- sequently amended, may give risE to a claim if the amendment imposes an inordinate burden apart from the underlying, existing regulation. Once again, attempts to clarify and create certainty only engender more uncertainty and one is faced with the sticky determination of "inordi- nate burden." The biggest impact of the Harris Act may have been through cases that were settled. The level of un- certainty about the meaning of the act leaves a wide playing field for litigants to advance an interpreta- tion that favors them. In negotia- tion, the perception of the potential liability can be more important than the actual liability, and thus the chilling effect of the act has limited government regulation far more sig- nificantlythan has the case law pre- , ~edent actually interpreting and applying the act. It has also prompted settlements where, if the governing law were clearer, the settlement might have been re- jected. In particular, the act allows a lo- cal government to settle a claim even though doing so involves a vio- lation of otherwise applicable laws and codes.94 This has played an im- portant role in many settlements where the local government officials and staff might not have been that opposed to a development project, but politics prevented a general change in the code to allow the project and others like it. Such settlements may also frustrate the involvement of third parties, be- cause their rights to notice and par- ticipation in the Harris Act litiga- tion are constrained. However, the tolerance of the courts for such settlements may be an issue, as re- ected in strongly worded special ncurrence of Chief Judge ~hwartz regarding such a settle- ment agreement in City of Miami Beach a Chisholm Properties South Beach, Inc., 830 So. 2d 842 (Fla. 3d DCA 2002).36 Although there is general lan- guage in the act that any variance or other exception from law granted pursuant to subsection (4)(c) must "protect the public interest" and be "the appropriate relief necessary" to relieve the inordinate burden, there are no processes or standards for the implementation of this protection. The procedure for court review and approval of the settlement agree- ment in subsection (4)(d)1 applies only when the law being violated is a statute. Violations of administra- tive rules and local ordinances and regulations appear not to trigger this procedure. And the act neither provides for the participation of third parties in the court's review of the settlement agreement, nor licitly extinguishes the third ties' rights to challenge court- _ctioned violations of the statute pursuant to the settlement agree- ment. 3) Harris Act legislative update. During the 2003 session, the Florida Legislature considered a series of changes to the Harris Act. A sum- mary of the proposed changes fol- lows: • Clarifies the act's requirement for the government to provide a 180- day ripeness determination indicat- ing what uses may be permitted on the property, and removes all ex- plicit references to the concept of ripeness from this process (though still utilizing the ripeness terminol- ogy of "final decision"); • Clarifies that the initial adop- tion or enactment of a regulation does not necessarily constitute an application of that law to property; • Expressly waives sovereign im- munity (in response to the circuit court's decision in the Royal World Metropolitan case); • Provides that certain large-scale regional water supply authorities may, in certain instances, be subject to the Harris Act; • Provides special standing re- quirements for property owners near a regional water reservoir, a special manner of compensation where an inordinate burden is found to exist, and special review and settlement procedures for Harris Act claims against regional water suppliers; and • Provides a sunset for regional water supply challenges of Decem- ber 31, 2005. None of these changes were en- acted. The bill died on the calendar, and interest groups expected it to resurface in the 20041egislative ses- sion. It did not. What did emerge from the 2004 legislative session was a new cause of action against counties (not cit- ies) under the Harris Act for changes to existing agricultural land use des- ignations or zoning, as part of a larger bill providing for agricultural economic development. The new §70.005 was created by Senate Bill 1712, as follows: Section ?0.005 Cause of action.-The landowner aggrieved by the changing of an existing agricultural land use classi- fication or agricultural zoning or the lowering of the current residential den- sity designation by a county which cre- ates an inordinate burden on property classified as agricultural land pursuant to §193.461 shall have an immediate cause of action in accordance with the procedures provided in §70.OOl,except that the 180-day notice period shall be reduced to a 90-day notice period.38 Until there is more judicial inter- pretation and clarification of the meaning of the myriad uncertain- ties in the act, it is likely to remain a paper tiger and encourage preser- vation of the regulatory status quo. While the act may not result in as many headline-grabbing monetary awards as some of its proponents might have liked, it will continue to have quiet but significant impacts on the public interest through the approval of projects whose owners threaten litigation and through settlement of Harris Act claims in violation of governing law. O ' See, e.8~ ~ Tahoe•Sierra Preservation Council, Inc. u. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32-month moratorium on development while pres- ervation plan was being developed was not a taking); Brad fordville Phipps Lim- ited Partnership u. Leon County, 804 So. 2d 464 (Fla. fat D.C.A. 2002) (inverse condemnation claim based on 22-month court-ordered delay in county's issuance of permits was not ripe and did not es- tablish deprivation of economically ben- eficial use of property); and Agripost, Inc. u Metropolitan Miami•Dade County, 845 So. 2d 918 (Fls. 3d D.C.A. 2003) (revo- cation of unusual use permit for waste treatment facility due to violation of con- ditions of approval was not a taking). 'See Lucas u. South Carolina Coastal Commission, 505 U.S. 1003 n.8 (1992). 3 See City of Pompano Beach u. Yard- arm Restaurant, Inc., 834 So. 2d 861 (Fla. 4th D.C.A. 2002) (city's actions in obstructing issuance of hotel building permit, through delay in issuing per- mits, wrongful revocation of permits, and attempt to repeal special exception, did not rise to level of taking). ' See Tahoe-Sierra, 535 U.S. at 323 (Lucas establishes a narrow exception where takings liability will result from a permanent deprivation of all benefi- cial use), and City of North Miami Beach u. Reed, 749 So. 2d 1276 (Fla. 3d D.C.A. 2000) (taking resulted when city in- stalled curbing along plaintiffs' frontage, thereby denying all vehicular access to the property). ' See Tahoe-Sierra, 535 U.S. at 314 (Penn Central teat involves a complex of factors including the regulation's eco- nomic effect on the landowner, the ex- tent to which the regulation interferes THE FLORIDA BAR JOURNAUJULY/AUGUST 2004 65 .._. i i ~; with reasonable investment-backed ex- pectations, and the character of the gov- ernment action). s Clay v. Monroe Counly, 849 So. 2d 363, 36.5-66 (Fla. 3d D.C.A. 2003). City of Riviera Beach u. Shillingburg, 659 So. 2d 1174 (Fla. 4th D.C.A. 1995). s Golf Club of Plantation, Inc. u. City of Plantation, 847 So. 2d 1028 (Fla. 4th D.C.A. 2003) (city policy banned the con• version of existing golf courses to any other use, even another recreational use, so matter was ripe for review). ' See generally Cordes, Leapfrogging the Constitution: The Rise of Stale Tak- ings Legislation, 24 EeoLOCY L.Q. 187, 204-15 (1997); Culpepper, Comment, The Strategic Alternative: How State Takings Statutes May Resolve The Unanswered Questions Of Palazzolo, 36 U. RICH. L. REV. 509 (2002); Michael A. Douglass, Note, Have They Gone Too Far?An Evaluation and Comparison of 1995 State Takings Legislation, 30 GA. L Rev. 1061 (1996) (noting that 38 states were considering such legislation in 1995 alone, and focus- ing on Texas and Florida statutes); Martinez, Statutes Enacting Takings Law: Flying in the Face of Uncertainty, 26 URe. Law. 327 (1993); Marzulla, State Private Property Rights Initiatives As A Response to "Environmental Takings,"46 S, C. L. REV. 613 (1995) (authored by one of the major proponents of such legisla- tion); Oswald, Property Rights Legisla- tion and the Police Power, 37 AM. Bus. L. J. 527, 540 (2000); Sax, Takings Legisla- lion: Where It Stands and What Is Next, 23 ECOLOGY L.Q. 509 (1996); Smith, Note, Private Property Protection Legislation and Original Understandings of the Tak- ings Clause: Can They Co•Exist?, 21 J. Levis. 93 (1995); Sugameli, Takings Bills Threaten Private Property, People, and the Environment, 8 FORDHAM ENVTL. L.J. 521, 532-50 (1997); and Walsh, Note, Achieving the Proper Balance Between the Public and Private Property Interests: Closely Tailored Legislation as a Remedy, 19 WM. & MARY ENVTL. L. & POLICY REV, 317 (1995 ). 1° They include Arizona, Colorado, Dela- ware, Florida, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Virginia, Washington, and Wyo- ming. Measure 7, the regulatory takings initiative adopted by popular vote in No- vember 2000 which would have required compensation for any regulation that causes any reduction in property value, was voided by the Oregon Supreme Court due to its violation of the single subject rule. League of Oregon Cities v. State of Oregon, 334 Or. 645, 2002 WL 31235582 (Or. October 4, 2002). The initiative had an exception for adult oriented uses, and was therefore deemed to amend both the just compensation and free expression sections of the Oregon Constitution. " Lucas u. South Carolina Coastal ~;ouncil, 505 U.S, 1003, 1015 (1992). tanding alone, of course, this perception eveals an incorrect understanding of federal constitutional law. It ignores the ad hoc balancing test the Supreme Court adopted in 1978 in Penn Central, which allows for the consideration of lesser im- pacts in light of the property owner's rea- sonable investment-backed expectations, the economic effect of the regulation, and the character of the governmental action, as discussed above. See Tahoe-Sierra dis- cussion in Part I above. iz See, e.g., Butts, Private Property Rights in Florida: Is Legislation the Best Alternative?, 12 J. LAND UsE & ENVTL L. 247 (1997); Douglass, supra note 1; Juergenameyer, Florida's Private Prop- erty Rights Protection Act: Does It Inor- dinately Burden the Public Interest?, 48 Fu. L. REV. 695 (1996); Monaco, The Har- ris Act: What Relief from Government Regulation Does It Provide?, 265 STETSON L. REV. 861 (1997); Powell et al., A Mea- sured Step to Protect Private Property Rights, 23 FLA. Sr. U. L. REV. 315 (1995); Stroud & Wright, Florida's Private Prop- erty Rights Act: What Will It Mean for Florida's Future?, 20 NOVA L. REV. 683 (1996); and Vargas, Florida's Property Rights Act: A Political Quick Fix Results in a Mixed Bag of Tricks, 23 FLA. ST. U. L. REV. 315 (1995). 13 Weaver and Coffey, Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation in Florida Environmental and Land Use Law (August 2002) (cata- loguing the trial court proceedings and decisions available under the act). "AGO 95-78. 's Sosa u. City of West Palm Beach, 762 So. 2d 981 (Fla. 4th D.C.A. 2000). is Osceola County u. Best Diversified, Inc., 830 So. 2d 139 (Fla. 5th D.C.A. 2002). "Royal World Metropolitan, Inc. et al. v. City of Miami Beach, Case No. 99- 17243-CA-23 (Order Granting Motion for Partial Summary Judgment, dated July 18, 2002) (reduction in height of apart- ment project from 24 to six stories; the case was one of several challenging the downzoning). 's Tampa Hillsborough County Express- way Authority u. K.E. Morris Alignment Seru., Inc., 444 So. 2d 926, 928 (Fla. 1984). 1e Brevard County u. Snyder, 627 So. 2d 469 (Fla. 1993). 20 Martin County u. Yusem, 690 So. 2d 1288 (Fla. 1997). Z' FLA. STAT. §70.001(3)(d). zz Royal World Metropolitan, Inc. u. City of Miami Beach, 863 So. 2d 320 (Fla. 3d D.C.A. 2003 ). z3 Hanna u. Environmental Protection Commission, 735 So. 2d 544 (Fla. 2d D.C.A. 1999 ). '" The 2004 Legislature amended §70.51 to change the term "special master' to "special magistrate" as part of an overall revision of the statutory use of this term, which was perceived as being "outmoded" according to the staff analysis. See www. flsenate.gov/data/session/2004/Sen- ate/bills/analysis/pdf/2004s0192.go.pdf. The bill was adopted and signed, and is at 2004 Fla. Laws ch.ll. See http:// election.dos.state.fl.ua/laws/041aws/ ch 2004-Oll.pdf. zs Scott u. Polk County, 793 So. 2d 85 (Fla. 2nd D.C.A. 2001). zs FLA. STAT. §70.001(3)(e). 27 FLA. STAT. §70.001(3)(b). ss Penn Central Transportation Com- pany u. City of New York, 438 U.S. 104 (1978). ze Compare Taylor u. Village of North Palm Beach, 659 So. 2d 1167, 1172-73 (Fla. 4th D.C.A. 1995) (applying federal ripeness standards). 30 Unfortunately, there is no legislative history to assist with the interpretation of the many issues raised by the "exist- ing use" concept because it was a late night "technical" amendment to the act after its approval. See Vargas, supra note 12. 31 FLA. STAT. §70.001(6)(b). 3z See FLA. STAT. §95.11 (3)(f). 33 FLA STAT. §70.001(12). 3i FLA. STAT. §70.001(4)(c). 36 Chief Judge Schwartz wrote that "the circuit court, in a comprehensive and in- sightful opinion by Judge Altonaga, re- jected an attempt by a hotel owner and the City of Miami Beach to grant totally unjustified and illegal height variances through the device of a sweetheart'settle- ment' of a spurious action by the hotel owner against the City under the [Har- ris Actl. I of couraetotally agree with this opinion and thus with the panel's deter- mination to deny review.... Beyond that, however, I think that this case is so rife with suspicion that the proceedings in this court, especially the presumptuous motion for rehearing en bane now before us, are, in turn, so clearly-indeed, at best-frivolous that sanctions should be imposed against the petitioners .... (ci- tations omitted)." See 830 So. 2d at 843. Compare Parker u. St. Johns County, et al., 2002 WL 31846456 (Fla. DOAH Dec. 17, 2002) (at pages 5 through 7, quoting an order of a circuit court upholding such a settlement, and recommending that a small scale comprehensive plan amend- ment be found in compliance based in part on the settlement agreement). as See www flaenate.gov/data/session/ 2004/Senate/bills/billtext/pdf/ s1712er.pdf. The bill was adopted and ordered enrolled. If it becomes law, it will take effect July 1, 2004. Susan L. Treuarthen is board cer- tified in city, county and local govern- ment law and primarily represents lo- cal governments in the areas of land use, local government, and related enuiron• mental and constitutional law with the frm of Weiss Serota Hellman Pastoriza Guedes Cole & Boniske, P.A., Ft. Lau- derdale. This column is submitted on behalf of the City, County and Local Govern- ment Law Section, Craig H. Colley, ehalr, and Jewel W. Cole, editor. 66 THE FLORIDA BAR JOURNAL/JULY/AUGUST 2004