Fluedra: flawed, but fixable?

• Author: Coller, Craig H.
• Position: City, County and Local Government Law

Your local government board has just gone through a heated, lengthy, and exhausting hearing that denied a landowner's zoning request. You think that you will soon be dealing with the inevitable certiorari review in circuit court, but that the board's labors are otherwise concluded. Not so fast. The landowner can instead choose to invoke a more obscure remedy, the Florida Land Use and Environmental Dispute Resolution Act, commonly known as FLUEDRA, which mandates that state and local governments first mediate disputes with any landowner who "believes that a development order, either separately or in conjunction with other development orders, or an enforcement action of a governmental entity, is unreasonable or unfairly burdens the use of the owner's real property." (1)

FLUEDRA is part of the Bert J. Harris, Jr., Private Property Rights Protection Act, included within F.S. Ch. 70. (2) FLUEDRA applies to any "development order" or "development permit" issued by a governmental authority. (3) A "development order" is broadly defined to include any order "which is or will have the effect of granting, denying or granting with conditions an application for a development permit and includes the rezoning of a specific parcel." (4) A development permit under FLUEDRA includes "any building permit, zoning permit, subdivision approval, certification, special exception, variance or other similar action." (5) The only land use regulations exempt from this process are actions by the state or local governments on comprehensive plan amendments. (6)

FLUEDRA has been in effect for over 15 years. Many local governments have seen requests for relief under it. Practitioners representing both local governments and property owners have now had the opportunity to see where FLUEDRA functions and where it fails.

For example, FLUEDRA places considerable and disproportionate burdens on local governments to make it more difficult for a local government to consider compromise resolutions. In addition, FLUEDRA focuses primarily on the landowner and the local government, and it is, thus, a flawed tool for resolving zoning disputes. Any zoning relief under FLUEDRA ultimately requires a public hearing when concerned area residents, who have a cognizable legal interest in the outcome of the zoning matter, will have the right to be heard. It is, therefore, in the interest of both the local government and the property owner to involve those other stakeholders thoroughly in the mediation process to avoid surprises that might derail a potential resolution. Yet FLUEDRA gives insufficient consideration to those concerned area residents.

This article highlights significant problems under FLUEDRA, informs practitioners of risks when applying FLUEDRA provisions, and suggests legislative changes to cure confusion from unintended consequences of the act.

FLUEDRA Cost Burden Should be Shifted to Landowners

One of the principal ways that FLUEDRA places an unfair and disproportionate burden on local governments is that it prohibits the local government from charging a property owner for the mediation process. (7) Typically, local government zoning departments are proprietary and must pay for themselves through application and permit fees. Although it is true that FLUEDRA allows governmental entities to establish procedures for sharing special magistrate fees and expenses, costs of providing notice, and effecting service of the request for relief, the local government's share of expenses is unbudgeted and borne by all taxpayers. (8)

More importantly, FLUEDRA does not provide for payment of the labor costs associated with processing a FLUEDRA request, as would typically be included in a standard zoning application. But the labor costs associated with FLUEDRA mediation are no less significant than those associated with a standard zoning application. Because the resources expended on processing a FLUEDRA request detract from the resources available to process zoning applications for which payment is provided, FLUEDRA discourages--from the outset of the process--the local government from thoroughly analyzing the issues and truly considering a compromise resolution. It is a far more economical use of limited resources to reaffirm the prior analysis.

The legislature should modify FLUEDRA to authorize local governments to impose a fee on the mediation procedure just as local governments are permitted to impose fees on zoning applications.

Modify FLUEDRA's Time Frames

The FLUEDRA time frames are also unrealistic and counterproductive. FLUEDRA requires the governmental entity to, within 10 days, forward the request for relief to a special magistrate who has been mutually agreed upon between the governmental entity and the landowner. (9) This is an unrealistic time constraint within which to require the parties to reach agreement, not only on selecting a mediator, but on the terms and conditions of the mediator's employment. From a government attorney's perspective, it is also an unrealistic amount of time with which to also obtain authorization from the government client on an unbudgeted expenditure.

Furthermore, the governmental entity has just 15 days from the date of receipt of the FLUEDRA request to issue its response. (10) The local government's analysis of the underlying zoning application required several months of work and involved input from numerous agencies or professional departments. Two weeks is an impracticable amount of time for the local government to provide an equivalently thorough consideration to the landowner's FLUEDRA request. The practical result is that the local government's response will be to stand by its prior decision. Providing at least 30 days within which to submit a response would afford the local government an appropriate amount of time within which to consider the FLUEDRA request without locking it into its prior position to meet the deadline. Providing more flexibility could make the mediation more fruitful.

The time frames at the initiation of the FLUEDRA proceeding are unrealistic, and the legislature should look to the Florida Rules of Civil Procedure for guidance. Although FLUEDRA permits an extension of time by agreement of the parties, the local jurisdiction should not be forced at the outset to seek agreement with a perhaps unreasonably impatient landowner. (11)

Revise FLUEDRA's Notification Requirements

FLUEDRA requires the govern mental entity to serve a copy of the property owner's mediation request to the owners of properties contiguous to the subject property and to those persons who testified about the application and who indicated a desire to receive notice...