Can Florida's legislative standard of review for small-scale land use amendments be justified?

• Author: Appleman, Bernard R.

ABSTRACT

This article examines the legal justification and practical application of recent Florida Supreme Court decisions classifying all comprehensive plan amendments as legislative decisions and all other zoning changes as quasi-judicial. The author outlines historical trends and concerns relating to the appropriate standard of judicial review for zoning actions, followed by a review of the evolution of the statutes and case law in Florida. The article challenges the standard of deference for legislative review of zoning actions based on separation of powers and due process. It also identifies inconsistencies in Florida case law and inequities in local government processes for reviewing small-scale amendments and rezonings. The article concludes that classifying all amendments as legislative is not adequately reasoned or justified and leads to inconsistent and inequitable results. In addition, it provides recommendations for legislative reform.

CONTENTS I. INTRODUCTION II. BACKGROUND A. Zoning and Comprehensive Planning B. Standards for Judicial Review of Zoning Decisions 1. Classifying Zoning Decisions Based on Effect on Policy 2. Decisions and Commentaries on Classifying Zoning Decisions 3. Procedure for Challenging Zoning Decisions C. Zoning Practices and Abuses 1. Examples of Abuses and Deficiencies 2. Comment from Courts on Abuse 3. Commentaries on Alternative Standards of Review III. FLORIDA LAW FOR PLAN AMENDMENTS AND REZONINGS A. Administrative Procedures for Amendments and Rezonings 1. Amending a Comprehensive Plan 2. Special Requirements for Small Scale Amendments Table 1: Differences Between Standard and Small-Scale Amendments 3. Comparing Small-Scale Amendments and Rezoning B. Florida Supreme Court Decisions Affecting Standards of Review for Rezonings and for Plan Amendments 1. Snyder Functional Analysis Test for Classifying Zoning Decisions 2. Yusem Holds that Comprehensive Plan Amendments are Legislative Decisions 3. Courts' Applications of Snyder and Yusem 4. Coastal Extends Bright-Line Rule to Small-Scale Amendments IV. ANALYSIS OF THE LEGISLATIVE STANDARD OF REVIEW FOR SMALL-SCALE AMENDMENTS A. Challenging the Legislative Standard of Review for Zoning Actions 1. Local Governments do not Provide True Separation of Powers 2. Legislative Decisions Lack Due Process 3. Balancing the Efficiency of the Legislative Review Standard Against the Potential for Abuse B. Inequity and Lack of Consistency in Classifying Small-Scale Amendments as Legislative Decisions 1. Small-Scale Amendments, Unlike Standard Amendments, Are Not Policy Requiring the Fairly Debatable Standard 2. The Adoption Processes for Small-Scale Amendments and Rezonings are Similar, but their Classifications Differ 3. Classifying all Rezoning as Quasi-Judicial is Inconsistent with Snyder's Functional Analysis Table 2. Classification of Zoning Decisions from Florida Supreme Court Opinions 4. The Yusem-Coastal Rule is not Consistent with the Statutory Differences Between Small and Large Scale Amendments V. CONCLUSIONS A. Small-Scale Amendments Are Not Policy B. Land Use Action Classifications are Inconsistent and Conflicting C. Lack of Procedural Due Process Is a Concern for Local Land Use Decisions D. The Court's Reasons for the Fairly Debatable Standard are Not Convincing E. Recommendations for Legislative Reform I.

INTRODUCTION

To rezone a 1.3 acre plot from residential low-density to commercial community-general, the City of Jacksonville exercised a state-mandated two stage process that entailed reviewing policy implications and submitting a copy of the proposed change to a state agency. (1) On the other hand, a zoning ordinance to add up to 600 multi-family residential units in an 885-acre tract did not require any policy analysis or submission to the state, but rather was subject to a review only of the impact of the change on the local comprehensive plan. (2) These apparently inconsistent processes result from the application of recent Florida Supreme Court decisions that apply a "bright-line" rule classifying all comprehensive plan amendments as legislative decisions subject to a highly deferential judicial review and all other zoning changes as quasi-judicial decisions subject to a more stringent judicial review. (3)

This article examines whether this "bright line" rule is appropriate based on its legal justification and practical application. Part II outlines historical trends and concerns relating to the classification and the standard of judicial review for zoning actions. Part III reviews the evolution of the statutes and case law in Florida, including examples of the impact of the court's decisions. Part IV challenges the high deference of review afforded legislative zoning actions and identifies inconsistencies and inequities in the Florida process for reviewing amendments and rezonings. Finally, Part V summarizes the author's rationale for concluding that designating all amendments as legislative is not justified and has resulted in the lack of a uniform, rational means for classifying land use decisions. In addition, it provides recommendations for legislative reform.

II.

BACKGROUND

1. Zoning and Comprehensive Planning

   In the landmark 1926 case of Village of Euclid v. Ambler Realty Co., the United States Supreme Court (the "Court") validated local government zoning and planning as means to exercise state police power. (4) The Standard State Zoning Enabling Act (SZEA) provided guidelines to the states in adopting, amending and enforcing zoning statutes. (5) The SZEA stipulates that zoning regulations are to be established in accordance with a comprehensive plan. (6) A comprehensive plan is a document prepared by a local government to serve as the basis for future decisions on zoning. It is future oriented, intended to anticipate and account for growth and change. (7)

   Because of the extreme difficulty in accurately predicting future growth needs and because of a plan's inherent transitory nature, there is an ongoing need to amend the provisions of a comprehensive plan. Florida statutes, for example, mandate a revised plan every five years and provide procedures for regular and special amendments. (8) The classification of amendments and the ultimate procedure for adopting and challenging them is a major theme of this article. (9)

   An amendment to the comprehensive plan may be initiated by persons seeking a use not allowed by the plan or to eliminate a use that is permitted under the plan. The amended plan by itself typically does not permit a landowner a different use of his land. Rather, it changes the map that designates future land use (future land use map or FLUM). (10) The landowner must then file for a zoning ordinance that achieves the desired zoning change. (11)

2. Standards for Judicial Review of Zoning Decisions

   1. Classifying Zoning Decisions Based on Effect on Policy

      One can categorize local government decisions affecting land use based on how they relate to policy. Some decisions, such as adoption of a comprehensive land use plan or a major revision of the plan, are clearly policy-making acts. Decisions that formulate policy are classified as legislative actions based on the general function of that branch of government to establish broad goals and directions for the general welfare of the community. (12) Other decisions, such as granting a special use permit to a landowner who meets the specified requirements, are characterized as the application of a previously determined policy to a new parcel of land. (13) Decisions that apply or interpret policies set by legislators are classified as judicial or quasi-judicial actions. (14) In between these two examples of land use changes, which are clearly either policy making or policy application, lies a middle ground where it is not always evident whether the decision-making body is formulating or applying policy. (15) Examples are major rezonings within a designated land use and small-scale amendments to a comprehensive plan. (16) How a zoning decision is classified or labeled can profoundly influence the process for the decision and the outcome of a challenge to that decision. (17)

   2. Decisions and Commentaries on Classifying Zoning Decisions

      1. Euclid "Fairly Debatable" Standard to Classify Zoning Decisions

         In the early stages of zoning, the Court established that zoning actions were legislative and that the decisions of a local government would not be overturned unless they were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." (18) This standard is highly deferential to the legislature and became known as the "fairly debatable" standard. (19) Through the 1960's, almost all courts followed this rule for classifying zoning decisions. (20)

      2. Fasano v. Board of County Comm'rs of Washington County (21)

         The Oregon Supreme Court was among the first courts to question the Euclid rationale. In Fasano, several homeowners opposed a developer's requested change of zoning from single family residential to planned residential, which allowed for a mobile home park. (22) The county board of commissioners approved the developer's request, overriding the vote of the planning commission, based on a finding that the increased density and different type of housing would help to meet the needs of urbanization. (23) In denying the homeowners' challenge, the county had argued that the board's decision was legislative and that the homeowners would need to show that the county had acted arbitrarily (i.e., it sought to apply the fairly debatable standard). (24)

         In affirming the lower courts' decision in favor of the homeowners, the Oregon Supreme Court noted that "a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority... " (25) The court firmly rejected the notion that the judicial review of the zoning action was...