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ABCs of Local Land Use and Zoning Decisions

Environmental & Land Use Law

This article targets the general practitioner who is called either to assist clients in seeking local government development approvals or in opposing such approvals. Often times, attorneys are approached on the eve of a critical public hearing to urge support for or object to a development order. Many times, clients wait until the last minute to seek legal counsel to assist in what they perceive as a local political matter. What clients may not anticipate are the vagaries of local collegial boards or the impact of well-organized or invested opposition. They may also discount the expense and uncertainty of litigation that may result from a development order being issued or denied. The purpose of this article is to arm the general practitioner with the tools demanded by this unique legal arena. The emphasis is on prevention because the outcome is often dictated by the presentation of evidence in the local government proceeding.

Expectations Associated with Local Government Boards
Securing land use approvals begins long before an application is filed or reviewed by staff. In advance of applying for local development orders, applicants and their lawyers must familiarize themselves with the filing processes, procedures, and substantive standards applicable to the application. Processes among local governments vary; one must be familiar with the relevant government’s standards before proceeding with a particular project.

Once advised on the process, the lawyer should ensure that staff properly reviews the application. This review may entail analysis of staff work product and notices throughout the process to ensure completeness with both procedural and substantive criteria. Counsel should also scrutinize the work product of retained consultants as they may not appreciate the need for strict compliance with the legal requirements. Any errors in the review process ultimately harm the client, not the local government.

When dealing with staff, the attorney must remember that ethics, credibility, and integrity are paramount. While clients may become frustrated with the development review process, it is important that the attorney and client interact with local government staff honestly and with proper decorum. Threatening a lawsuit or suggesting that one will go over a reviewer’s head is rarely appropriate and, more often than not, unproductive. In addition, an attorney seeking a land use approval must remember that he or she may be called in the future to work with staff on a different development, and the attorney’s dealings with staff on other projects may impact his or her ability to achieve a client’s goals. Being professional with staff at all times benefits the attorney’s current and future clients.

Types of Proceeding: Know the Rules — There are two1 general types of land use approval proceedings before a local government: quasi-legislative and quasi-judicial.2 Quasi-legislative decisions are generally described as those in which the local government is tasked with formulating policy rather than applying specific rules to a particular situation.3 A local government’s approval or denial of an issue in its quasi-legislative capacity is typically subject to a fairly debatable standard of review.4 Fairly debatable means that the government’s action must be upheld if reasonable minds could differ as to the propriety of the decision reached.5 Decisions subject to the fairly debatable standard of review need only be rationally related to a legitimate public purpose, such as the health, safety, and welfare of the public, to be valid.6

Quasi-judicial decisions involve the application of policy to a specific development application.7 Quasi-judicial hearings are to be conducted with more formality than a legislative public hearing and are akin to informal trials. Quasi-judicial decisions are subject to a certiorari standard of review on appeal. The distinction between the two types of proceedings impacts the process that the applicant is due, the relative discretion the local government has in approving or denying the requested action, and the proper method for appealing an adverse decision.

Know What Process is Due — Understanding whether a decision is quasi-judicial or quasi-legislative is critical, as procedural due process rights are enhanced in quasi-judicial proceedings and the standards of review differ substantially. For example, quasi-legislative hearings require little process. Indeed, allowing only 10 minutes for members of the public to speak on quasi-legislative matters comports with due process.8 Moreover, limitations on ex parte communications with the decisionmakers that apply to quasi-judicial hearings do not apply to legislative determinations. There is no right in quasi-legislative hearings to cross-examine witnesses.9

contrast, in quasi-judicial hearings, parties are entitled — as a matter of due process — to cross-examine witnesses, present evidence, demand that witnesses testify under oath, and demand a decision that is based on a correct application of the law and competent substantial evidence in the record.10 Recent case law provides that limiting parties to only eight minutes to present positions regarding a zoning resolution violates procedural due process under the circumstances of that case.11

In quasi-judicial proceedings, participants must be careful to avoid contacting the members of the deciding panel prior to the hearing to urge a particular outcome.12 If ex parte contacts have been made (which is more often than not the case), they must be disclosed at the quasi-judicial hearing or they are presumed prejudicial to the outcome and will likely result in a finding of a violation of procedural due process.13 The presumption can only be overcome if the local government — not the applicant — demonstrates that the contact was not prejudicial following a multi-factor, fact-intensive analysis.14

Know the Applicable Legal Burden — The discretion afforded decisions on quasi-legislative matters is broad, and decisions need only satisfy the “fairly debatable” standard. Given this broad discretion, only decisions that are arbitrary and capricious or illegal are subject to serious legal challenge.15

Quasi-judicial decisions are more involved. It is beyond the scope of this article to describe the myriad criteria that may apply to a particular application. The general rule, however, requires the applicant (not local government staff) to demonstrate compliance with the local government’s code of ordinances, land development regulations, and comprehensive plan.

For example, to obtain a site-specific rezoning, the applicant must demonstrate that the rezoning is consistent with the local government’s comprehensive plan and all procedural requirements of the zoning ordinance; if the initial burden is met, the burden shifts to the local government to demonstrate that maintaining the existing zoning on the property serves a legitimate public purpose or that the decision denying the rezoning is not arbitrary, discriminatory, or unreasonable.16 A similar burden shifting scheme applies to site plan and plat approvals, special exceptions, and variances (although the relevant tests differ).17 At a minimum, once the applicant makes a prima facie showing of entitlement to a development order, the burden shifts to the local government to justify denial of the order for proper reasons that are based on competent substantial evidence in the record.

The applicant bears the initial burden of presenting competent substantial evidence to support its development application. Thus, if local government staff omits a substantive item in its review, the applicant must be prepared to supplement the record with competent evidence or risk legal challenge to an issued development order. Most Florida local governments are blessed with capable planning and legal staff; nonetheless, applicants should avoid ceding responsibility for ensuring compliance with the land development code and comprehensive plan to the local government.

Similarly, third parties challenging the issuance of a development order must be prepared to establish noncompliance through competent evidence, including witness testimony at the quasi-judicial hearing. The failure to raise an issue before the local government prevents them from raising additional issues on appeal.

Making the Case on the Record — In preparing for a hearing before a local board, one must be prepared to establish a record demonstrating entitlement to the development permit sought, including submitting competent substantial evidence as proof. If an appeal is anticipated, the lawyer should ensure that the record is transcribed at the hearing or, at a minimum, the proceedings are recorded such that they can be transcribed at a later date. The lawyer must ensure that the record contains all information necessary to defend (or defeat) the development order on appeal, as the record is generally fixed in certiorari proceedings. In other words, if evidence on an issue being appealed was not presented at the hearing before the local government, the evidence does not exist as far as the appeal is concerned.18

In proceedings before the local board, the applicant typically addresses whether the requested development order complies with the land development code and comprehensive plan. It is also critical to make objections on the record to procedural or substantive deficiencies — as the failure to raise proper objections can result in the issues being waived for purposes of appeal.19

Making the case on the record in a quasi-judicial proceeding can lead to awkward interactions with collegial boards. Given the judicial nature of the proceeding, it is incumbent on counsel to ensure that testimony and evidence provided is competent and substantial.20 Establishing that opposing evidence is neither competent nor substantial may require thorough cross-examination of staff and witnesses. Although awkward and often uncomfortable, creation and thorough development of the record is necessary if further appellate proceedings are to offer hope for success. That does not mean, however, that the lawyer should feel free to treat the local government forum like a circuit courtroom. Courtroom theatrics and aggressive treatment of witnesses are likely to solidify a board vote against one’s client.

In addition, any party challenging the issuance of a development order must establish its standing on the record. Indeed, a third party challenging the development order must establish standing in the first instance before it will have standing to pursue a petition for writ of certiorari with a circuit court.21 Third parties and special interest groups must be vigilant in establishing standing under the “special injury” test set forth in Renard v. Dade County, 261 So. 2d 832 (Fla. 1972).22 That test requires the party challenging a development order to show special damages peculiar to the party which differ in kind (as opposed to degree) to the damages suffered by the community as a whole.23 Moreover, if the challenger is a special interest group, it must demonstrate that a substantial number of its members are similarly affected.24 This evidence must be included in the record before the local government or it will not be considered on a petition for writ of certiorari.25

It’s Not Over ’Til It’s Rendered — The local administrative process is not complete until the order is “rendered” in writing and filed with the clerk. statute, all denials of development permits must be in writing.26 Recent case law leaves little question that the time for appeal commences upon the local government’s filing of the written order (either in the form of a denial or an issuance).27

Choosing Which Way to Go — Adversely affected parties have several avenues of appeal. Which route to take depends largely upon whether the local tribunal was acting in a quasi-legislative or quasi-judicial capacity and, if the latter, what was the underlying reasoning for the rendered decision.

Preliminarily, if the local tribunal acted in a quasi-legislative capacity, the standard of review is usually “fairly debatable,” and the avenue of appeal is typically a declaratory judgment action in circuit court.28 contrast, if the local tribunal was acting in a quasi-judicial capacity, dual appellate options exist: a petition for writ of certiorari to the circuit court or a complaint for declaratory judgment pursuant to F.S. §163.3215 (2008), also filed in circuit court.

Further, if quasi-judicial, the reasons underlying the local tribunal’s decision impact the method of appeal. A decision based on code compliance is appealable by filing a petition for writ of certiorari. A decision based on consistency or inconsistency with the comprehensive plan may only be challenged by filing a declaratory judgment action under F.S. §163.3215. Moreover, many local government decisions are premised on noncompliance with the comprehensive plan and land development code, which may necessitate the filing of a petition for writ of certiorari and a complaint for declaratory judgment under F.S. §163.3215, if all appealable issues are to be addressed.

Additionally, issues regarding the constitutionality of a local ordinance are not appealable by petition for writ of certiorari; such claims must be pursued as a declaratory judgment action.29 Similarly, issues regarding vested rights, equitable estoppel, and waiver may not be germane to the development order being requested. If so, such issues are inappropriate for consideration by petition for writ of certiorari.30 Other avenues of appeal may be available.31

Finally, nonprevailing applicants often seek to invoke federal civil rights law under 42 U.S.C. §1983 (2006), in part to take advantage of attorneys’ fees shifting under 42 U.S.C. §1988. However, such claims are extremely limited in Florida and usually do not succeed.32

Timing of Appeal — The petition for writ of certiorari must be filed within 30 days of rendition of the order by the local government. “Rendition” is defined as the date the order being challenged is signed and filed with the city or county clerk.33 Similarly, lawsuits under F.S. §163.3215 must be filed within 30 days of rendition of the challenged order.34

Lawyers should familiarize themselves with the local land use code as it may provide alternative procedures for appealing a local land use decision, including special magistrate proceedings pursuant to F.S. §70.51. These proceedings may provide more cost-effective alternatives than circuit court litigation; in addition, requirements regarding exhaustion of administrative remedies may be implicated.

If circuit court is the proper venue, the practitioner must bear in mind that the filing of a complaint or a petition for writ of certiorari requires much more preparation than the filing of a notice of appeal. Writ petitions are, in essence, opening appellate briefs which must cite record evidence, cases, and arguments demonstrating a violation of procedural due process, the essential requirements of law, or a decision lacking competent substantial evidence as support.35 Preparing the petition is typically far more time intensive than filing a notice of appeal. Likewise, while not as involved as writ petitions, complaints under F.S. §163.3215 must identify all inconsistencies between the challenged land use decision and the local comprehensive plan. Either option requires adequate lead time for preparation.

Standards of Review — Under Florida law, local land use decisions made in the context of a quasi-judicial hearing are appealable as a matter of right to circuit court.36 Certiorari review is limited in nature. The standard of review before the circuit court is as follows: 1) whether procedural due process was afforded, 2) whether the local tribunal observed the essential requirements of law, and 3) whether the local government’s decision was based on competent substantial evidence. To be legally sufficient, the petition must demonstrate a preliminary basis for relief, i.e., the local tribunal’s decision failed to comply with one of the above requirements.37 If the petition fails to meet this standard, it is subject to summary dismissal.38

In contrast to writ petitions, cases brought under F.S. §163.3215 are subject to a “strict scrutiny” standard of review. The circuit court, in a de novo proceeding, must evaluate whether the development order issued strictly complies with the local government’s adopted comprehensive plan.39 Cases brought under this section are much more involved than the aforementioned certiorari proceeding. As with any other civil proceeding, the parties are entitled to discovery, and the case is tried in a full bench trial. The matter is not limited to record evidence before the lower tribunal.40

Proceedings and Remedy — Perhaps the most striking distinction between writs of certiorari and complaints for declaratory judgment are the procedures applicable to the cases and the available remedies. Petitions for writ of certiorari are appellate in nature. The case is pursued under the Florida Rules of Appellate Procedure.41 Once the circuit court issues an order to show cause, appellate briefing timelines specified in Fla. R. App. P. 9.100 control. Such matters are typically resolved after an “appellate” type hearing before a circuit court judge (or in some judicial circuits, a panel of judges).

In a writ of certiorari proceeding, the circuit court’s sole remedy is to issue the writ and remand the matter to the lower tribunal for further consideration (subject to the legal direction of the court).42 In other words, the reward for prevailing on a petition for writ of certiorari is a second proceeding before the local tribunal that initially rendered the adverse decision. The circuit court cannot enter any judgment on the merits as to the underlying case or direct the lower tribunal to enter a particular order.43

contrast, complaints invoking equitable jurisdiction under F.S. §163.3215 offer equitable remedies.44 Such lawsuits can be broader than the statute may suggest at first glance. F.S. §163.3215 specifies that the section is the exclusive method “for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan adopted under this part.” “Aggrieved or adversely affected” parties are defined as persons or local governments “which will suffer an adverse effect to an interest protected or furthered by the comprehensive plan.”45 Due to recent statutory amendments, the definition of “adversely affected party” specifically includes the developer/applicant for a development order. As construed by the courts, the broad definition of “adversely affected party” opens the courthouse doors to a broad class of potential plaintiffs seeking de novo review of issued development orders.46 However, the sole issue that may be litigated in such cases is consistency (or inconsistency) with the comprehensive plan.

As noted, complaints under F.S. §163.3215 invoke the equitable jurisdiction of the court. Available remedies include declaratory and injunctive relief. Under appropriate circumstances, courts may order the removal of structures built pursuant to illegally issued development orders.47 While an order of removal may seem unlikely, the mere potential of that remedy should sufficiently encourage developers to allow legal challenges to reach a conclusion before expending resources on the subject project. Under such circumstances, the risk and expense of delay are typically borne entirely by the developer. The delay and attendant expense only fortify the importance of ensuring compliance with the local code and comprehensive plan in the first instance.

Navigating local land use approvals can be harrowing. Understanding the local land development process as well as the legal burdens will go far in securing a client’s objectives. Preparation and knowledge in the area is paramount to success.

Most critical is identifying the relevant legal standards and procedures by reviewing the local government’s land development code and comprehensive plan. Thereafter, direct efforts toward culling competent substantial evidence to justify one’s decision or refute the opponent’s position. Local land use appeals are rarely “slam dunks,” but such cases typically improve with considerable reflection and case adjustment before the matter is presented to the local tribunal. Waiting to establish the legally required showing until the hearing on the requested development order or an appeal thereafter may prove devastating to one’s case.

1 A third type of approval is an administratively issued development order such as a building permit. Such approvals are based on an executive decision concerning code compliance, and they are typically issued without a hearing. The determination concerning code compliance is typically made following a staff review process, and the ultimate development order is usually issued by the appropriate local government official. Since these approvals do not entail public hearings before the local government, this article focuses on the quasi-judicial and legislative approvals only.

2 Practitioners should be aware that whether a decision is quasi-judicial versus quasi-legislative is a matter of law that is not impacted by the nomenclature selected by the local government. D.R. Horton v. Peyton, 959 So. 2d 390, 400 (Fla. 1st D.C.A. 2007). It is the character of the proceeding that controls. Bd. of County Comm’rs v. Snyder, 627 So. 2d 474 (Fla. 1993).

3 Snyder, 627 So. 2d at 474. (distinguishing between quasi-legislative and quasi-judicial proceedings). The classic quasi-legislative decisions in land use are amendments to comprehensive plans, general zonings or rezonings, adoption of land development regulations, decisions on developer agreements, issuance of debt instruments, and decisions to enter into proportionate fair share agreements.

4 Id. An atypical standard and procedure is applicable to the review of comprehensive plan amendment approvals (as opposed to denials), which are subject to review under a specific administrative scheme set forth in Fla. Stat. §163.3184 (2008).

5 Coastal Dev. of N. Fla., Inc. v. City of Jacksonville Beach, 788 So. 2d 204, 205 n.1 (Fla. 2001); Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997).

6 City of Miami Beach v. 8701 Collins Ave., 77 So. 2d 428, 430 (Fla. 1954).

7 Snyder, 627 So. 2d at 474. Common development orders that are considered in the context of a quasi-judicial hearing are site-specific rezoning, site plan approvals, variances, special exceptions, and voluntary annexations.

8 See, e.g., Reed v. Cal. Coastal Zone Conservation Comm’n, 55 Cal. App. 3d 889 (Cal. Ct. App. 1975); see also Hadley v. Dep’t of Admin., 411 So. 2d 184 (Fla. 1982) (noting “[t]here is. . . no single, unchanging test which may be applied to determine whether requirements of procedural due process have been met”).

9 Coral Reef Nurseries, Inc. v. Babcock Co., 410 So. 2d 648, 652-53 (Fla. 3d D.C.A. 1982).

10 Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 5th D.C.A. 1991).

11 Hernandez-Canton v. Miami City Comm’n, 971 So. 2d 829, 832 (Fla. 3d D.C.A. 2007).

12 Jennings, 589 So. 2d at 1340; Vizcayans, Inc. v. City of Miami, 15 Fla. L. Weekly Supp. 657 (Fla. 11th Cir. Ct. May 7, 2008).

13 See Fla. Stat. §286.0115.

14 Jennings, 589 So. 2d at 1340.

15 Bd. of County Comm’rs v. Casa Dev., Ltd., 332 So. 2d 651, 654 (Fla. 2d D.C.A. 1976).

16 Snyder, 627 So. 2d at 476.

17 See Broward County v. G.B.V. International, Ltd., 787 So. 2d 838, 842 (Fla. 2001) (site plan and plat approval standard); Premier Developers III Assocs. v. City of Fort Lauderdale, 920 So. 2d 852, 854 (Fla. 4th D.C.A. 2006) (site plan approval standard); Metro. Dade County v. Section 11 Prop. Corp., 719 So. 2d 1204, 1205 (Fla. 3d D.C.A. 1998) (special exception standard); Bd. of County Comm’rs v. Webber, 658 So. 2d 1069, 1073 (Fla. 2d D.C.A. 1995) (variance standard).

18 See City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

19 Valdez v. Miami Dade County Bd. of County Comm’rs, No. 07-304 AP (Fla. 11th Cir. Ct. Mar. 31, 2008). In that case, one of the commissioners on the Miami-Dade County Board of County Commissioners made inappropriate comments during a hearing concerning an application for a boundary change or a use variance. Id. The court concluded that procedural due process requirements had not been violated because Mr. Valdez failed to object to the commissioner’s comments during the hearing. Id. While the hearing was informal, Mr. Valdez was required to object to any procedural irregularities to preserve his right to raise the issue on appeal. Id.

20 Vaillant, 419 So. 2d at 624.

21 The same is not true of a declaratory judgment action brought under Fla. Stat. §163.3215. Save the Homosassa River Alliance, Inc. v. Citrus County, 2 So. 3d 329 (Fla. 5th D.C.A. 2008). However, the only issue in such a proceeding is the consistency (or inconsistency) of the development order with the comprehensive plan. Issues relating to code compliance are not the proper subject of a declaratory judgment action under this section.

22 As noted herein, a more liberal standard applies to comprehensive plan consistency challenges under Fla. Stat. §163.3215.

23 City of Fort Myers v. Splitt, 988 So. 2d 28, 32 (Fla. 2d D.C.A. 2008) (distinguishing between standing under Fla. Stat. §163.3215, and standing to bring a petition for writ of certiorari).

24 See Fla. Home Builders Ass’n v. Dep’t of Labor and Employment Sec., 412 So. 2d 351, 353-54 (Fla. 1982); c.f., Dunlap v. Orange County, 971 So. 2d 171, 175 (Fla. 5th D.C.A. 2007) (confirming that evidence of standing need not be established before the local tribunal for an adversely affected party to bring a lawsuit under Fla. Stat. §163.3215).

25 Splitt, 988 So. 2d at 28.

26 See Fla. Stat. §§125.022 and 166.033; see also Fla. Stat. §163.3215(3).

27 See 5220 Biscayne Blvd., LLC v. Stebbins, 937 So. 2d 1189, 1190 (Fla. 3d D.C.A. 2006).

28 As noted in endnote 4, proceedings related to comprehensive plan amendments are an exception to the rule. Approved comprehensive plan amendments are subject to appeal administratively under Fla. Stat. Ch.120, before the Department of Community Affairs or Division of Administrative Hearings. Fla. Stat. §163.3184. The appropriate forum and relative standard of review varies upon whether the comprehensive plan amendment is a small-scale or large-scale amendment and whether the Florida Department of Community Affairs found the amendment “in compliance.” contrast, a decision denying a comprehensive plan amendment is appealed by filing a declaratory judgment action in circuit court; the standard of review in the proceeding is “fairly debatable.”

29 Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195 (Fla. 2003).

30 Palazzo Los Olas Group, LLC v. City of Fort Lauderdale, 966 So. 2d 497, 501 (Fla. 4th D.C.A. 2007).

31 Id.

32 McKinney v. Pate, 20 F.3d 1550 (Fla. 11th Cir. 1994); Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (Fla. 11th Cir. 1997); Paedae v. Escambia County, 709 So. 2d 575 (Fla. 1st D.C.A. 1998).

33 Fla. Stat. §163.3215(3); Fla. R. App. P. 9.020(h); 5220 Biscayne Boulevard, LLC, 937 So. 2d 1189.

34 5220 Biscayne Boulevard, LLC, 937 So. 2d 1189.

35 See Fla. R. App. P. 9.100(g) (listing the general requirements for the petition).

36 Saadeh v. City of Jacksonville, 969 So. 2d 1079, 1082 (Fla. 1st D.C.A. 2007) (citing Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000)).

37 Fla. R. App. P. 9.100(h). See generally Fine v. City of Coral Gables, 958 So. 2d 433 (Fla. 3d D.C.A. 2007).

38 Recent case law supports the proposition that the writ petition may be dismissed without leave to amend and without oral argument if it does not demonstrate, on its face, a preliminary basis entitling the petitioner to relief. Fine, 958 So. 2d 433. As such, great care should be used in preparing the petition.

39 “Strict scrutiny” in the land use context has been described as a process whereby the circuit court makes a detailed examination of a statute, rule, or order of a tribunal for exact compliance with or adherence to a standard or norm. Snyder, 627 So. 2d 474.

40 Fla. Stat. §163.3194(4)(a).

41 In Concerned Citizens of Bayshore Comm., Inc. v. Lee County, 923 So. 2d 521 (Fla. 2d D.C.A. 2005), the Second District concluded that Fla. R. Civ. P. 1.630 applies to common law petition for writ of certiorari proceedings. This conclusion appears unsupported in light of a 1996 amendment to Fla. R. App. P. 9.100 clarifying that petitions for writ of certiorari that are appellate in nature are governed by the appellate rules, not Fla. R. Civ. P. 1.630. See generally Fla. R. App. P. 9.100 comm. notes 1996 Amendment.

42 Clay County v. Kendale Land Dev., Inc., 969 So. 2d 1177, 1181 (Fla. 1st D.C.A. 2007).

43 Id.; Broward County v. G.B.V. Int’l., Ltd., 787 So. 2d 838, 844 and n.18 (Fla. 2001).

44 See Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th D.C.A. 2001).

45 Fla. Stat. §163.3215(2). The definition specifies that “the alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons.” Id. However, in Save the Homosassa River Alliance, 2 So. 3d 329, the court broadly construed this language to allow plaintiffs with a generalized interest in environmental issues impacting the Homosassa River to proceed under Fla. Stat. §163.3215, because their interests were alleged to be adversely impacted and because the stated environmental interest was greater than a generalized interest in the community at large. Id. at 340.

46 Id. at 345 (Pleus, J., dissenting).

47 See Pinecrest Lakes, Inc., 795 So. 2d 191.

Gary K. Hunter, Jr., and Douglas M. Smith are shareholders with Hopping Green & Sams, P.A., in Tallahassee. Mr. Hunter is immediate past chair of the Environmental and Land Use Law Section of the Bar. He received both his undergraduate (BBA) and law degrees, cum laude, from the University of Georgia. His practice concentrates on land use entitlements, land use litigation, property rights litigation, and representation of clients before the Florida Legislature. Mr. Smith received his undergraduate degree from California State University, Chico, and his J.D. degree, with great distinction, from University of the Pacific, McGeorge School of Law, where he served as an articles and comment editor of the law review. His practice concentrates on land use entitlements, land use litigation, and real estate disputes.

This column is submitted on behalf of the Environmental and Land Use Law Section, Paul H. Chipok, chair, and Gary K. Oldehoff and Kelly Samek, editors.

Environmental & Land Use Law