by Craig H. Coller and Dennis A. Kerbel
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 governmental 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 of a special magistrate proceeding.12 It is unlikely that concerned area residents appearing at a zoning hearing will be familiar with this rather obscure mediation proceeding. These concerned area residents are, thus, unlikely to have given thought to announcing at a public meeting that they would like to receive notice of a FLUEDRA request should the application be denied.
The reality of any proposed FLUEDRA settlement involving a quasi-judicial zoning decision is that it will necessarily involve a public hearing before the governmental authority. Notice of that hearing will be provided in the same manner as the initial zoning decision. Accordingly, concerned area residents will learn of the proposed settlement, but only after the negotiation is complete. As addressed below, FLUEDRA currently limits the ability of concerned residents to participate in the process even if they do receive notice. It is all the more unlikely that a settlement of a zoning dispute will be well received if the governmental authority learns that a group of stakeholders — the concerned area residents who participated at the initial hearing — did not receive notice of the FLUEDRA request at all and were, thus, completely shut out of the negotiation process because, although they previously appeared and objected, they failed to request notice of the FLUEDRA proceeding.
The legislature should recognize that most citizens will be unfamiliar with the FLUEDRA process and should, therefore, modify the notice requirements to require notice to all persons who participated at a zoning hearing, regardless of whether the participants specifically request such notice. In the interim, the local governmental authority would be well advised to provide such notice voluntarily, to increase the likelihood of a successful resolution.
Clarify and Expand the Time Frame to Serve to Neighbors the Property Owner’s Request for Relief
It is not clear from the act whether the 10-day time frame for the governmental entity to serve the FLUEDRA request for relief on the special magistrate also applies to service upon contiguous property owners and others entitled to receive notice.13 Gathering the addresses to send the request in such a short time frame could be a daunting task. The legislature needs to clarify and expand the time frame for neighbors and hearing participants to receive the request for relief. Again, while, as noted above, the parties to FLUEDRA could agree to extend the time for service, local governments should not be placed in that uncertain position.14
Reduce Mailing Costs
FLUEDRA requires that the property owner’s request for relief include a brief statement of the proposed use of the property, summary of the enforcement action or development order (including a copy of the development order or documentation of the enforcement action), and a brief statement on the impact of the government action and the ability of the owner to achieve the proposed use of the property. Unfortunately, what the legislature may have intended as a brief statement may, in reality, be a substantial submission, including extensive exhibits. Serving a lengthy statement with exhibits on the various persons entitled to receive notice under the statute will result in expensive mailing costs. The legislature should expressly limit the number of pages of a request for relief. Additionally, the legislature should instead authorize the local jurisdiction to mail a one-page summary, indicating the general nature of the request and a notice that the entire document is available for inspection, and to post the entire request and any exhibits on its website. Such an amendment conserves local government resources and is environmentally friendly.
Adopt Time for Mailing Provisions for Neighbors’ Requests to Participate
Recipients of a FLUEDRA request have 21 days from receipt to inform the governmental authority that they wish to participate.15 The statute is silent on whether time for mailing should be included when determining whether recipients have timely filed an appearance, in contrast to the procedure set forth in Fla. R. Civ. P. 1.090.16 In an abundance of caution and consistent with the purpose of FLUEDRA to reach resolution, it would seem reasonable to give a liberal construction to this requirement. The legislature could simply reference the rules for service by mail under the Rules of Civil Procedure to cure this uncertainty.
Expand 45-day Requirement for Holding a Hearing
FLUEDRA provides an unrealistic requirement that the hearing be held within 45 days of the special magistrate’s receipt of the request.17 This time frame becomes that much more unreasonable given that the special magistrate must provide 40 days’ notice of the hearing to those requesting to participate.18 Because recipients of a FLUEDRA request have 21 days to request to participate in the proceedings, the math simply does not work. Although the parties can agree to extend the time, the Florida Legislature should address these time frames directly rather than impose an unreasonable time frame and rely on the uncertainty that the parties to the proceeding will agree to extend it.
Shift Responsibility for Sending Out Hearing Notices with Reimbursement from the Property Owner
The special magistrate is charged with providing notice of the hearing to all parties who have expressed an interest in participating.19 Special magistrates are typically not equipped to send out substantial numbers of hearing notices, whereas most local governments routinely send out such notices as part of their zoning responsibilities. This consideration is particularly relevant for a FLUEDRA proceeding, for which the local government has previously provided mailed notice of the initial request for relief. It would not be difficult for the local government simply to include in a subsequent mailing only those persons who have indicated an interest to participate. Shifting responsibility for hearing notices to local governments, with appropriate provisions for reimbursement by the property owner, will result in cost savings to all concerned.
Persons Indicating a Desire to Participate in FLUEDRA Mediation Should Be Given Full Party Status
Under FLUEDRA, the special magistrate’s responsibilities are divided into what amounts to a two-stage process.20 In the first stage, the special magistrate acts as a classic mediator charged with facilitating a resolution between the property owner and the governmental entity.21 In the second stage, the special magistrate acts more like an administrative law judge who recommends findings of fact and conclusions of law. The special magistrate’s mediation responsibilities in the first stage are more complicated in zoning matters because there are often more than two sides to an issue. Neighbors and other concerned area residents who object to a zoning application may have provided vociferous testimony and other substantial competent evidence that provided a basis to deny the zoning application.22
But FLUEDRA does not give objecting neighbors and other concerned area residents the same status it gives property owners. First, as noted above, area residents may not even be entitled to notice of the proceeding unless they are either contiguous property owners or have made a special request to receive such notice.23 Second, even if they received the notice, the FLUEDRA statute makes abundantly clear that, although they may be permitted to participate in the proceeding, they shall not be granted party or intervenor status.24
This limitation creates the appearance among concerned area residents that they do not have an equal voice in the matter and essentially stigmatizes them as outsiders. The limitation on residents’ party status also has a practical consequence: The area residents who participated in the FLUEDRA mediation session are not entitled to receive a copy of the special magistrate’s recommendation, which is only served on parties.25 Only by the grace of the property owner or the local government will concerned area residents receive notice that the special magistrate has issued a recommendation to the local government, and in all likelihood they will be denied the same opportunity to participate in any postmediation consideration by the local government that the property owner is granted.26
The limitation on concerned area residents’ appearance as full parties seems almost gratuitous, given the breadth of issues that FLUEDRA permits nonparties to address: “issues . . . regarding alternatives, variances, and other types of adjustment to the development order or enforcement action which may impact their substantial interests, including denial of the development order or application of an enforcement action.”27 These petty limitations may lead surrounding neighbors to suspect that the FLUEDRA proceeding is not designed to reach a fair resolution. Indeed, because the first notice they will receive about a possible resolution after mediation will be for a quasi-judicial hearing at which the local government will consider the proposed settlement, they may view it as a fait accompli and not part of a process that respects their concerns.
Hotly contested zoning hearings take a substantial portion of a local government’s agenda, and a local government’s quasi-judicial decision cannot be undone administratively. Any changes to that decision will require a proceeding of equal dignity to the original zoning hearing. Therefore, resolution of a zoning case that requires the approval of the governing body cannot be accomplished with just the concurrence of the governmental representative required under FLUEDRA to be present at the mediation.28 The quasi-judicial body may not appreciate being placed in a position of holding yet another public hearing to implement a suggested land use settlement if neighbors were not given an equal voice at the mediation table.
The limitation on concerned area residents’ participation in the FLUEDRA process is ultimately counterproductive, because the same residents who have been denied party status by FLUEDRA will likely have standing to appeal any decision of the local government to grant relief to the property owner as a result of the FLUEDRA process. To make FLUEDRA useful in resolving zoning disputes that, by their very nature, affect more than just the property owner, the legislature should expand the definition of “party” to include adjoining property owners and other concerned area residents.
During the Mediation Stage, FLUEDRA Should Permit Private Meetings
FLUEDRA requires that “[i]n all respects, the hearing must be…open to the public.”29 If the goal of FLUEDRA is to reach a compromise, this provision undermines the process. An essential element of mediation is the opportunity of the mediator, in this case the special magistrate, to have private and frank discussions with the parties.30 FLUEDRA should be modified to permit the type of private discussions that are essential to any effective mediation process. No prejudice will result from these private meetings as to zoning or other quasi-judicial matters because any proposed resolution will ultimately be subject to public discussion before a quasi-judicial body that will be the ultimate decision maker.31 The legislature should amend the FLUEDRA process to give special magistrates this important mediation tool.
Recommending a Resolution
If mediation is not successful, the special magistrate is required to conduct a hearing, to consider the facts and circumstances set forth in the FLUEDRA request for relief, and to make findings as to the reasonableness of the local government decision and the burden on the property.32 But FLUEDRA does not permit the special magistrate to make a formal recommendation to the governing body without first issuing findings against the local government. The special magistrate is, therefore, encouraged to find against the local government. Although the findings are not binding, they may embolden a property owner to continue to pursue a weak claim. Thus, rather than resolving matters, this aspect of FLUEDRA instead prolongs disputes and encourages unproductive litigation.
This is an unfortunate and unintended consequence because the special magistrate is in a unique position to make recommendations that could resolve disputes. As part of the FLUEDRA process, the special magistrate must understand the history of the property, including the date of purchase, the purchase price, and the initial use of the property.33 The special magistrate also considers plats recorded on the property, other subdivisions of the property, subsequent development, and environmental protection issues.34 Most critical to the analysis are 1) the property owner’s reasonable expectation of use at time of acquisition; 2) the public purpose the local government sought to achieve with its decision; and 3) whether alternatives would “achieve the public purpose and allow for reduced restrictions on the use of the property.”35
Should the special magistrate determine the local government’s decision was reasonable or did not unfairly burden the property, FLUEDRA mandates that the special magistrate issue a recommendation that the local government’s decision remain undisturbed, which concludes the proceeding.36 Should the special magistrate recommend the property owner receive relief from the local government’s decision, the statute suggests a multitude of options to be included in a recommendation to the local government.37
But rather than permitting the special magistrate to make a recommendation as to simply what is a reasonable compromise based on all the facts, FLUEDRA requires the special magistrate wear two hats: first, as a mediator, and second, as an administrative law judge issuing a recommended order, albeit one that is not binding on the local government.
This places the special magistrate in an awkward position. The special magistrate may have invested substantial energy in crafting what the magistrate believes to be a fair compromise. Unless the special magistrate finds that the government action was unreasonable or unfairly burdens the property, however, the magistrate will be unable to communicate this settlement to the governing authority should the parties not reach a compromise. For a special magistrate who merely wants to communicate an alternative development plan that may satisfy all the parties, an unintended consequence of FLUEDRA is to provide the special magistrate with an incentive to go further and unnecessarily to find that the government’s decision unfairly burdens the property.
Rather than forcing the special magistrate to find that the government’s decision was unreasonable or unfairly burdens the property, the legislature should add a third option. It could provide the special magistrate with the option to find that the government’s decision was not unreasonable nor unfairly burdened the property, but nevertheless to recommend to the local government that a modified development would provide a fair and just compromise. This option removes the need to make an unnecessary finding against the local government and discourages unproductive litigation that serves only to increase the costs and burdens to the local government, the affected neighbors, and the property owners themselves.
Allow Additional Time for Governments to Respond to Recommendations
If the special magistrate issues a recommendation determining that zoning relief is appropriate, FLUEDRA requires the local government to accept, modify, or reject the recommendation.38 If the governmental entity does not act within 45 days, the recommendation is deemed rejected. The practical problem with this time limitation is that the special magistrate may recommend uses for the property that cannot be approved absent a public hearing. Because many local ordinances have specific notice requirements for public hearings related to zoning, the 45-day requirement simply may not be an adequate period of time to have the zoning matter reheard, even if there is a desire for further consideration. This section allows an extension of time if an agreement is reached between the owner and the local government, but, again, that provision places the burden on the local jurisdiction to obtain the agreement of a potentially impatient landowner.
Eliminate FLUEDRA Provision that Relieves a Landowner of Zoning Procedures to Implement a Compromise
FLUEDRA contains a vague and problematic provision that, should the local government accept the special magistrate’s recommendation to grant zoning relief, the landowner is not required to “duplicate previous processes in order to effectuate the granting the modification, variance or special exception.”39 The dilemma caused by this provision is that notice and the public hearing process for zoning hearings are designed to afford interested parties, including affected property owners and affected neighbors, due process. Any attempt to circumvent notice and public hearing requirements would render a zoning decision to implement the recommendation subject to attack on due process grounds, thereby defeating the goal of FLUEDRA.40
Clarify Time Limitations in the Written Decision Requirement
Even if the governmental entity accepts the special magistrate’s recommendation in its entirety or on a modified basis, FLUEDRA permits the private property owner to nonetheless reject the special magistrate’s recommendation.41 In that event, FLUEDRA forces the governmental entity, within 30 days, to issue a written decision that “describes as specifically as possible the use or uses available to the subject real property.”42 Although the statute does not expressly provide the date from which the 30-day written decision requirement runs, it presumably begins after the 45-day period to reject the special magistrate recommendation, or 30 days from the date that the local government receives the property owner’s rejection. It would be helpful for the legislature to clarify the time limitations set forth in this provision.
Setting aside the need to correct or clarify some of FLUEDRA’s procedural deadlines, the legislature may want to give the special magistrate greater authority to communicate to a governmental authority a recommended compromise of a land use dispute. Tinkering around the margins, however, might not be sufficient to make FLUEDRA effective at resolving land use disputes. It is unclear whether FLUEDRA’s method of imposing a forced mediation upon governmental authorities and restricting the participants to that proceeding will resolve many land use disputes, particularly those disputes that have already been the subject of exhaustive public hearings. Typically, land use disputes are best settled prior to a governmental decision, where a property owner or developer has the opportunity to meet with objecting neighbors. Because of the multitude of interested parties, resolution of a land use dispute after a governmental decision is far more difficult. But by making a few changes to FLUEDRA to bring all the stakeholders to the table and to give the local government more incentive to fully consider a compromise without incurring significant costs, FLUEDRA could provide a practical vehicle for resolving seemingly intractable disputes without resorting to costly and burdensome litigation.
1 Fla. Stat. §70.51(3) (2010).
2 This article is intended to provide a general overview and FLUEDRA’s practical impact on local government. A much more detailed description of the act can be found at Bentley, Understanding the Florida Land Use and Environmental Dispute Resolution Act, 37 Stetson L. R. 381 (2008).
3 Fla. Stat. §§70.51(2)(a) and 70.51(2)(b) (2010).
4 Fla. Stat. §70.51(2)(a) (2010).
5 Fla. Stat. §70.51(2)(b) (2010). The scope of this article is related to development order decisions by local government authorities.
6 Id. Of course, such actions have always been determined to be legislative, not quasi-judicial in nature. Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997); Rinker Materials Corp v. Metropolitan Dade County, 528 So. 2d 904 (Fla. 3d D.C.A. 1987). Notwithstanding, alternative dispute resolution procedures are provided for denial of comprehensive plan amendments pursuant to §163.3181(4).
9 Fla. Stat. §70.51(4) (2010).
10 Fla. Stat. §70.51(16)(a) (2010).
11 Fla. Stat. §70.51(23) (2010).
12 Fla. Stat. §70.51(5) (2010).
13 Fla. Stat. §70.51(5)(a) (2010).
14 Fla. Stat. §70.51(23) (2010).
15 Fla. Stat. §70.51(12) (2010).
16 Fla. R. Civ. P. 1.090(e)
17 Fla. Stat. §70.51(15)(a) (2010).
18 Fla. Stat. §70.51(15)(b) (2010).
20 Fla. Stat. §70.51(17) (2010).
21 Fla. Stat. §70.51(17)(a) (2010).
22 Dusseau v. Metropolitan Dade County Bd. of County Comm’rs, 794 So. 2d 1270 (Fla. 2001) (governmental authorities decision should be affirmed if supported by substantial competent evidence regardless of the existence of contrary competent evidence).
23 Fla. Stat. §70.51(5)(b) (2010).
24 Fla. Stat. §70.51(12) (2010).
25 Fla. Stat. §70.51(19) (2010) (“Within 14 days after the conclusion of the hearing, the special magistrate shall prepare and file with all parties a written recommendation.”) (emphasis added).
26 Fla. Stat. §70.51(21)-(23) (2010) sets forth the process by which the local government considers the special magistrate’s recommendations.
27 Fla. Stat. §70.51(12) (2010).
28 Fla. Stat. §70.51(17)(a) (2010) requires that representatives be present to bind their respective parties or be in a position with authority to recommend a solution “directly to persons with the authority bind their respective parties to a solution,” which would be the case with local governments.
29 Fla. Stat. §70.51(17) (2010).
30 See, e.g., Fla. R. Civ. P. 1.720(i)0.
31 A private mediation process would not run afoul of the prohibition on ex parte communications with quasi-judicial board members set forth in Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d D.C.A. 1991), provided that the local government’s representative at the mediation is a member of the administration and not a board member. Jennings applies to the quasi-judicial decisionmakers, not to the executive administration.
32 Fla. Stat. §70.51(17)(b) (2010).
33 Fla. Stat. §70.51(18)(a) (2010).
34 Fla. Stat. §70.51(18)(b)-(c) (2010).
35 Fla. Stat. §70.51(18)(e)-(f) (2010).
36 Fla. Stat. §70.51(19)(a) (2010).
37 Fla. Stat. §70.51(19)(b) (2010). The special magistrate may recommend, among other things, adjustment of land development or permit standards, modifications in intensity or density of the development, issuance of a development order, variance, or other extraordinary relief or purchase of the property by a governmental entity.
38 Fla. Stat. §70.51(21) (2010).
39 Fla. Stat. §70.51(21)(a) (2010)
40 See Chung v. Sarasota County, 686 So. 2d 1358 (Fla. 2d D.C.A. 1986) (commission zoning settlement agreement constituted illegal contract zoning where stringent notice and hearing requirements were bypassed); Molina v. Tradewinds Development Corp., 526 So. 2d 695 (Fla 4th D.C.A. 1988) (challenge to zoning settlement denied where settlement is subject to required public hearings).
41 Fla. Stat. §70.51(22) (2010).
Craig H. Coller is an assistant county attorney in the Miami-Dade County Attorney’s Office and is chief of the land use and environment section. His practice focuses on zoning and land use. He is a former chair of the City, County and Local Government Law Section.
Dennis A. Kerbel is an assistant county attorney in the Miami-Dade County Attorney’s Office and is a member of the Environmental and Land Use Law Section. His practice focuses on zoning and land use.
This column is submitted on behalf of the City, County and Local Government Law Section, Kenneth A. Tinkler, chair, and Jewel White, editor.