Slipsliding away: landowners continue to lose substantive rights under local planning case law.

• Author: Aycock, Lynda R.
• Position: Florida

"There's glory for you! I don't know what you mean by `glory,'" Alice said. Humpty Dumpty smiled contemptuously. "Of course you don't -- till I tell you." "I meant `there's a nice knock down argument for you!'" "But `glory' doesn't mean `a nice knock down argument,'" Alice objected. "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be the master -- that's all."

Lewis Carroll

Through the Looking Glass

This article addresses a law familiar to anyone who has ever seen legislation implemented -- the law of unintended consequences. The First District in City of Jacksonville Beach v. Marisol Land Dev. Co., 706 So. 2d 354 (Fla. 1st DCA 1998), recently added to a stymying body of growth management jurisprudence. Under current case law, third parties seeking to reverse zoning approvals based on inconsistency with a comprehensive plan are afforded greater rights than landowner applicants seeking to reverse zoning denials based on inconsistency. This article traces developing case law interpreting comprehensive plans from the 1985 Growth Management Act to its unforeseen present.

The Florida Legislature created F.S. [sections] 163.3215 in 1985 to allow private causes of action to enforce local comprehensive plans as applied to "development orders." A development order is defined by statute as "any order granting, denying, or granting with conditions an application for a development permit." The act broadly defines a "development permit" as "any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land." The definitions of "development order" and "development permit" in the 1985 Act were identical to definitions in the Local Government Comprehensive Planning Act of 1975. Most authorities thought that [sections] 163.3215 created a previously unavailable remedy to ensure that local governmental actions applicable to specific parcels of land comply with the local plan. Parties thought they "knew" what the legislature meant by carrying over the definitions from the 1975 Act. As landowners discovered, in the words of the Firesign Theater: "Everything you know is wrong."

Background

Development traditionally was limited solely by the provisions of a zoning code and the availability of electricity, water, sewer, and telephone services. Today, Florida has subordinate zoning and other land development regulations to the substantive standards and policies contained in local comprehensive land use plans. Comprehensive plans are intended to increase certainty and reduce the influence of neighborhoodism and political influence on the local decision-making process. Unfortunately, the vague and utopian language frequently incorporated in plans lends itself to unpredictable interpretations by local zoning boards.

The Growth Management Act requires local governments throughout the state to adopt comprehensive plans which are required to be consistent with the State Comprehensive Plan, the relevant regional policy plan, and Minimum Criteria Rule (Fla. Admin. Code Ch. 9J-5). The act requires local plans to address the following "elements": 1) future land use; 2) traffic circulation or transportation; 3) sanitary sewer, solid waste, drainage, potable water, and groundwater aquifer recharge; 4) conservation; 5) recreation and open space; 6) housing; 7) coastal management, if applicable; 8) intergovernmental coordination; and 9) mass transit, if applicable, but may address other planning concerns such as schools, safety, historical preservation, economic development, and other elements peculiar to the region or locality.

Several provisions of the act address consistency with the plan. Of significance to this article are [sections] 163.3194, which defines "consistency," and [sections] 163.3215, which addresses private causes of action regarding consistency of development orders.

Section 163.3194(3)(b) of the act provides:

A development approved or undertaken by a local government shall be consistent with the comprehensive plan if the land uses, densities or intensities, capacity or size, timing, and other aspects of the development are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

Section 163.3215 of the act provides a method of judicial review of local zoning decisions challenged on consistency grounds:

(1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in [sections] 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part.

(3)(b) Suit under this section shall be the sole action available to challenge the consistency of a development order with a comprehensive plan adopted under this part.

(4) As a condition precedent to the institution of an action pursuant to this section, the complaining party shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the...