Why classifying a small-scale land use amendment as a legislative decision is not justified.

• Author: Appleman, Bernard R.
• Position: Florida

Rezoning a 1.3 acre plot from residential to commercial is considered a legislative decision that formulates new policy and is subject to a highly deferential judicial standard of review. (1) In contrast, a rezoning to add up to 600 multi-family residential units in an 885-acre tract is considered a quasi-judicial decision that applies existing policy and is subject to a much less deferential judicial standard of review. (2) These apparently inconsistent results stem from recent Florida Supreme Court decisions that apply a "bright-line" rule classifying all comprehensive plan amendments as legislative decisions and all other zoning changes as quasi-judicial. (3) This article reviews state and local government procedures for various zoning changes, along with a discussion of recent Florida Supreme Court decisions on the classification and standards of review for zoning actions. The analysis demonstrates the inadequate legal justification for the present "bright-line" rule and the resulting inconsistencies in classifying small-scale amendments and rezonings.

Florida Law for Amendments and Rezonings

* Comprehensive Plans are Legislative Actions--A comprehensive plan for land use and zoning establishes a local government's direction for growth and development. (4) As a major policy formulation by a county commission or a city council in its lawmaking role, the plan is a legislative act, which requires a highly deferential standard of judicial review. (5) In contrast, a local government decision that applies an existing legislative policy to an individual case is classified as a quasi-judicial decision. (6) An example is a change of the zoning status of a particular parcel of land from residential to commercial where the future land use map (FLUM) had previously authorized such a use. (7)

* Amending a Comprehensive Plan Entails a Two-stage Process--The state's process for amending a comprehensive plan involves two stages: proposal and adoption. (8) Following a public hearing, the local government submits the proposed amendment for review to the Florida Department of Community Affairs (FDCA) and other regional planning, state, and public agencies. (9) The procedure for the adoption stage depends on whether the FDCA exercises its discretion to review the proposed amendment. (10) If the FDCA reviews the amendment, it issues objections, recommendations, and comments (ORC) report. (11) Following a second public hearing, the local government has 60 days to adopt the amendment as originally drafted, to adopt the amendment with change, or to decide not to adopt the amendment. (12) If the FDCA has not reviewed the amendment and there are no proposed changes or objections from any affected party, the amendment can be adopted directly. (13)

Amendments to a comprehensive plan also reflect land use policies of a local government and have traditionally been considered legislative decisions. (14) The detailed nature of the amendment procedure is consistent with there being considered policy decision affecting many within the locality, as well as agencies and entities outside the local boundaries.

* Legislature and Court Establish Special Considerations for Small-scale Amendments--In some situations, the need has arisen for timely rezoning of a small parcel of land that the local government has failed to include in previous comprehensive plan amendments, but that it considers urgent for the interests of the community, as well as the developer. Both the legislature and the judiciary responded to the need for a more efficient process for these small-scale zoning changes and for a consistent methodology for classification and review of these decisions.

In 1995, the Florida Legislature exempted small-scale amendments from several of the requirements described above. (15) In the proposal phase, the small-scale amendment requires only one hearing compared to two hearings for a large-scale amendment. (16) Although the local government submits all proposed amendments to the FDCA and other agencies, the FDCA has indicated that it does not review small-scale proposals. (17) Furthermore, in the adoption stage, unless challenged, the local government is not required to submit a small-scale amendment to the FDCA as is required for a large-scale amendment. (18)

In 1993, the Florida Supreme Court established the functional analysis test that classified a zoning decision as legislative if it formulated land use policy and as quasi-judicial if it merely applied policy in Board of County Comm'rs v. Snyder, 627 So. 2d 469,474 (Fla. 1993). The court then applied that principle to land use decisions. "Rezoning actions which have an impact on a limited number of persons or property owners, on identifiable parties and interests, where the decision is contingent on a fact or facts ... are quasi-judicial actions...." (19)

Following Snyder, courts were divided on whether small-scale amendments were legislative or quasi-judicial. (20) Fleeman v. City of St. Augustine Beach, 728 So. 2d 1178, 1179-80 (Fla. 5th DCA 1998), held that the request to change the land use of a 0.26-acre plot was an amendment to the comprehensive plan and constituted a legislative act. The court observed that even though it was a small parcel, its proximity to the ocean and to a major thoroughfare suggested important policy concerns. (21)

Grondin v. City of Lake Wales, 5 Fla. L. Weekly Supp. 727 (Fla. 10th Cir. Ct. 1998), determined that the zoning change of a three-acre parcel from single family to commercial qualified as a quasi-judicial decision. According to the court, the proposed land use change was not the broad formulation of policy associated with a legislative decision; rather the city's decision more closely resembled an application of the comprehensive plan as the proposed change was consistent with the plan's policies and text. (22)

* Florida Supreme Court Holds that Small-scale Amendments are Legislative--In 1997, Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997), established the rule that an amendment to a local government's comprehensive plan, even for a single parcel, is by definition formulation of policy and hence legislative in...