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Slipsliding Away: Landowners Continue to Lose Substantive Rights under Local Planning Case Law

Environmental & Land Use Law

& #x201c;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. §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 §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.”


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 §163.3194, which defines “consistency,” and §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 §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.

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(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 complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken. The local government receiving the complaint shall respond within 30 days after receipt of the complaint. Thereafter, the complaining party may institute the action authorized in this section. However, the action shall be instituted no later than 30 days after the expiration of the 30 day period which the local government has to take appropriate action.

Authorities at the time assumed any person asserting “special injury” under the local plan could bring a §163.3215 action. See, e.g., Pelham, Hyde and Banks, “Managing Florida’s Growth: Toward an Integrated State, Regional, and Local Comprehensive Planning Process,” 13 Fla. St. U. L. Rev. 515, 558–559. Pelham cited the act’s language stating the interest “may be shared in common with other members of community at large, but shall exceed in degree the general interest and community good shared by all persons.” Id. at 559, citing Chapter 85-55, §18, 1985 Fla. Laws 207, 233.

Statutory Construction

Historically, courts reviewing decisions of local zoning boards interpreted the provisions of the applicable zoning code in favor of the landowner. Rinker Materials Corporation v. City of North Miami, 286 So. 2d 552 (Fla. 1973), is the seminal Florida case interpreting zoning codes. The Florida Supreme Court held that zoning regulations are in derogation of private rights of ownership and property owners are entitled to rely on the clear and unequivocal language of municipal ordinances and the standards cited therein. The court stated that words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary. Significantly, the court held that the ordinance should be interpreted in favor of the property owner. Courts must give to a statute, or to an ordinance, the plain and ordinary meaning of the words employed by the legislative body. Brooks v. Anastasia Mosquito Control District, 148 So. 2d 64 (Fla. 1st DCA 1963).

There have been few cases interpreting comprehensive plans and, to date, there is no generally accepted method to evaluate consistency with plans. The federal 11th Circuit Court of Appeals in Eide v. Sarasota County, 908 F.2d 716, 727 (11th Cir. 1990), pointed out the difficulty in determining consistency with the local plan. The Eide court noted there was a split between two Florida districts. The Fourth District in Southwest Ranches v. Broward County, 502 So. 2d 931, 935 (Fla 4th DCA 1987), held that an action must only be consistent “in light of” all elements of the plan. This line of reasoning, which permits a balancing of plan provisions, was followed in the First District in B.B. McCormick & Sons v. City of Jacksonville, 559 So. 2d 252 (Fla. 1st DCA 1990).There, opponents asserted a proposed landfill was inconsistent with certain policies of the conservation/coastal zone protection element of the plan which pertained to freshwater wetlands. The site was zoned in the “governmental use” zoning classification which the court found permitted the proposed use. The city argued that in light of the elaborate mitigation, monitoring, and maintenance plans, the landfill proposal was consistent with the objectives of the plan.

The First District Court of Appeal observed:
[C]ases which address the application of strict scrutiny to a zoning action which is facially inconsistent with the plan are distinguished from the instant case, in which the resolution of the issue of consistency is heavily dependent upon interpretation of the terms of the plan. Id. at page 257.

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Under such circumstances, the explanation offered by the local body for concluding that the project is consistent with the plan, despite suggestions to the contrary in the language of the plan itself, should not simply be accepted at face value. It should instead be carefully examined in light of the language of the plan with regard to whether the local government’s rationale can be reconciled with the provisions of the plan.. . . Id. at page 258.

The court found that while the plan evidenced concern for the conservation of wetlands and their functions, the city had demonstrated that its mitigation and preservation of the function of the wetlands supported the finding that the project was consistent with the plan.

The balancing and weighing approach employed by the First District in B.B. McCormick was also used by the Fifth District in St. Johns County v. Owings, 554 So. 2d 535 (Fla. 5th DCA 1989), rev. den., 564 So. 2d 488 (Fla. 1990). There, the court reviewed by certiorari the county commission’s denial of the landowner’s application for rezoning. Finding that the comprehensive plan could reasonably be interpreted to allow for commercial zoning in the area in question, the court quashed the denial. In sustaining the decision of the lower court, the Fifth District held that the court applied the correct law where it:

weighed the opinion of the planning and zoning board that the small tract in question could not be zoned commercial without violating the plan, against the fact that the surrounding property on three sides was zoned for commercial use without violating the plan, as well as the opinion of an expert planner that the change would be consistent with the plan, and determined that the plan would not be violated by allowing the requested change.

In reviewing the court’s decision in Owings, the Fifth District expressly approved the review and interpretation of the comprehensive plan by the court and the weighing and balancing of plan provisions.

Conversely, in Machado v. Musgrove, 519 So. 2d 629 (Fla. 3d DCA 1987), adopted en banc, 519 So. 2d 629 (Fla. 3d DCA), the Third District held that a proposed zoning action must strictly adhere to all elements of the plan. Judge Cowart’s concurring opinion in Cape Canaveral v. Mosher, 467 So. 2d 468, 470 (Fla. 5th DCA 1985), takes the latter, stricter position. The strict approach to consistency was also followed by the First District in Alachua County v. Eagle’s Nest Farms, Inc., 473 So. 2d 257 (Fla. 1st DCA 1985). There, the applicant sought a special use permit for a private grass airstrip. The planning department’s report noted the area was “predominantly rural but not remote” and that further residential development was expected. The county’s plan contained the following goal: “Goal: To encourage the orderly, harmonious, and judicious use of land, and to provide for the extension of the useful life of land.” It also contained the following objectives: “2. Protect land uses from encroachment of incompatible land use types” and “4. Encourage land use patterns conductive to neighborhood development.”

To grant a special use permit, the county zoning ordinances required a showing that the proposed special use “could be granted without substantial detriment to the public good” and “would not substantially impair the intent and purpose” of the plan. The Alachua County plan did not contain any specific provisions applicable to private airstrips. Additionally, the plan did not define “incompatible use.” Witnesses for the county testified that perceived fears associated with an airstrip could prevent orderly residential development of the area surrounding the appellant’s property. The court found that while the applicant had demonstrated the use could be granted without detriment to the public good, the applicant had failed to establish that the airstrip “would not substantially impair the intent and purpose” of the plan.

Shifting Sands

While lack of predictability in the method of determining plan consistency is troublesome to applicants for a development order, these difficulties pale in comparison to the disparities in plan review created by the Supreme Court’s interpretation of §163.3215.

The Florida Supreme Court in Parker v. Leon County, 627 So. 2d 476 (Fla. 1993), created a paradigm shift in growth management law. It limited the application of §163.3215 to actions brought by third party intervenors to challenge local decisions granting applications for rezoning that such intervenors contend are inconsistent with the comprehensive plan. The court examined the statute’s express language in determining that §163.3215 does not apply to actions brought by applicants since they do not seek to prevent an action on a development order. Also, the denial of the rezoning does not affect the use or intensity or density of use on the property. The court concluded that the statute could not apply to applicants.

The holding is intriguing in light of language in the statute that a suit under §163.3215 is the “exclusive” procedure for challenging consistency of development orders, which by definition include denials of development orders. Further, it does not account for a landowner who is aggrieved by the often-used tool of an “approval” with so many burdensome conditions that the use is rendered physically or economically impossible. Nonetheless, Parker is the current state of the law.

While Parker determined that only third person intervenors are entitled to bring an action under §163.3215, Parker did not expressly decide that §163.3215 contemplated a de novo review. The statute, however, does so. The intent of the act is to limit local government’s exercise of its zoning power and to provide a comprehensive review of governmental actions for consistency with plans. The Fourth District recently held that review of a development order for consistency with the comprehensive plan under §163.3215 is a de novo review by the circuit court. Poulos v. Martin County, 700 So. 2d 163 (Fla. 4th DCA 1997); see also Emerald Acres Inv. v. Board of County Com’rs of Leon County, 601 So. 2d 577(Fla. 1st DCA 1992), rev’d, Parker, supra, holding §163.3215 establishes a statutory cause of action providing de novo review to a party adversely affected by a local government development order.

In Marisol, the First District further undermined the rights of development order applicants and their supporters. Marisol and Lanvenir Properties sought to rezone their lot on U.S. A1A to construct a freestanding drug store. The circuit court granted certiorari and quashed the Jacksonville Beach City Council denial of the rezoning. The circuit court held that the denial departed from the essential requirements of law and failed to provide due process because of the “Council’s erroneous determination that such zoning was inconsistent with the Plan.” 706 So. 2d at 356.

The First District Court of Appeal quashed the circuit court decision and held:
Even where review entails “strict scrutiny,” Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 475 (Fla. 1993), the circuit court is not authorized to decide questions of zoning policy or comprehensive plan consistency de novo. Local government has primary jurisdiction over such questions.

706 So. 2d at 355.
In sum, the First District determined that local government’s legal interpretation of its comprehensive plan could not be reexamined by the circuit court. In doing so, the court severely limited the right of applicants to challenge consistency determinations.

Where Do
Landowners Stand?

While the right of third party intervenors to a de novo determination of the consistency of development orders with the plan arguably has been established, what right of judicial review is afforded to other affected parties?

Pursuant to Parker, applicants for a development permit which is denied may only seek review by certiorari in circuit court. Other adversely affected parties who are proponents of a denied rezoning, such as adjoining property owners whose property values would be enhanced by the rezoning, are likewise limited in their opportunities for review.

Limiting or denying meaningful review in situations where a development order is denied ignores the fact that local government’s interpretation of its plan can have far-reaching consequences and can adversely affect the lands of other landowners who are not parties to the zoning proceeding. For example, a county’s interpretation of a plan that a certain use is prohibited at intersections affects adversely all owners of lands at all intersections. Under Parker, however, none of these landowners has any right to appeal the county’s interpretation of the plan because the interpretation was made in connection with the denial of a development order for another site.

Arguably, providing persons opposing a rezoning action with a de novo review while limiting the owner/applicant to a review of the record creates the incongruous situation in which landowners and supporters of a proposed rezoning whose financial interests may be impaired by an incorrect interpretation of the plan have fewer rights and a greater burden than third party opponents. This appears contrary to the express intent of the legislature which contemplated that a circuit court would review actions of local government in light of the plan provisions to ensure that the rights of landowners were not taken without due process. Section 163.3194(4)(a) of the act provides:

(a) A court, in reviewing local governmental action or development regulations under this act, may consider, among other things, the reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan, or element or elements thereof, in relation to the governmental action or development regulation under consideration. The court may consider the relationship of the comprehensive plan, or element or elements thereof, to the governmental action taken or the development regulation involved in litigation, but private property shall not be taken without due process of law and the payment of just compensation.

Snyder requires that the landowner demonstrate consistency with the plan. Plan consistency is the first hurdle that must be cleared and, for this reason, has become a powerful tool for fighting any project which requires any development permit. The procedures used to ensure consistency is crucial to protecting the rights of all parties, not just opponents to a rezoning.

Quasi-judicial zoning hearings must afford some degree of due process. Coral Reef Nurseries, Inc. v. Babcock, 410 So. 2d 648, 652–653 (Fla. 3d DCA 1982). Nonetheless, zoning proceedings are not conducted with the same niceties as litigation: “Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure.” Lee County v. Sunbelt Equities, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993).

Snyder held that boards are not required to make findings of fact and at least one case held there was no requirement that witnesses be sworn or for findings of fact and the right of cross-examination had been waived. City of St. Petersburg v. Cardinal Industries Dev, 493 So. 2d 535 (Fla. 2d DCA 1986). Applicants for development permits do not enjoy the same protections afforded to civil litigants.

Proponents of a rezoning often prepare for the public hearing on their application without knowing whether there will be any opposition to the proposed rezoning action or what objections or issues the opposition will raise. Local governments, confronted by increasingly lengthy agendas, commonly place time limits on testimony and presentation of evidence. Documentary evidence, such as scientific reports, traffic studies, and the like, are rarely read before local government’s decisions are rendered. While variance, exception, and rezoning criteria usually are stated in a straightforward manner in the zoning code, local plans typically contain over a hundred “policies” and “objectives.” Operating under due process by egg timer rules, it is virtually impossible to ensure that an adequate record is developed on every conceivable plan consistency issue that might be raised in such circumstances.To build bulletproof records, applicants must retain a myriad of planning, transportation, and environmental experts to address or rebut every possible plan consistency issue that might be raised at the public hearing without any prior notice of those issues. Every governmental proceeding will become more time consuming, expensive, and complicated with applicants seeking to address issues that are not raised and to build records that may not be needed.

Most cases to date which have considered consistency have considered conflicts between future land use map (FLUM) designations and proposed rezonings. Few decisions have considered permitting actions such as the granting of building permits, exceptions, or variances where the applicable zoning district is consistent with the FLUM designation under the plan but the proposed use is alleged to be inconsistent with some other provision of the plan. That situation is changing as opponents of development begin to exploit other provisions of plans, particularly those which are written vaguely.

The net impact of Parker and Marisol on landowners is both sweeping and chilling. As stated, local collegial bodies are held to far more lenient due process requirements than those in circuit court. Additionally, certiorari, like any appeal, is limited to the issues preserved below. The Fifth District has twice refused to allow introduction of issues in certiorari review “which were not presented before [the zoning authority below] at the public hearing.” First City Savings Corp. v. S&B Ptrs, 548 So. 2d 1156, 1158 (Fla. 5th DCA 1989), also citing Bataglia Fruit Co. v. City of Maitland, 530 So. 2d 940 (Fla. 5th DCA 1988).

Parker means that the applicant must prepare to show consistency with all elements and all provisions of the plan while third parties may sit back and wait until the last minute of the final public hearing on the matter. In fact, opponents need not raise any plan issues on the record at any public hearing. The first time the applicant may learn of the purported plan inconsistency may be upon receipt of the §163.3215 notice up to 30 days after the hearing. One doubts that this is what the legislature had in mind.

Since all cases under §163.3215 review the development order for consistency with the plan de novo, there is no consideration of the zoning body’s consistency analysis, let alone its conclusion. Conversely, Marisol means that a circuit court must defer to the zoning body’s legal analysis of plan consistency. A circuit court cannot determine whether local government’s interpretation of the plan was correct, but only whether there was substantial evidence to support the incorrect interpretation that was made. A circuit court cannot quash the decision unless the record is bereft of support for the consistency determination, which is an unlikely scenario.

Snyder imbued local zoning cases with more procedural requirements to protect the applicant from politically based zoning decisions. Parker and Marisol combine to undermine landowners’ rights to appeal incorrect consistency determinations and leave local governments with few restraints on their plan interpretations. When development orders are denied, local governments, like Humpty Dumpty, are the masters of the words in their plans and there is little a landowner can do to remedy the situation. The legislature should amend §163.3215 to level the playing field for consistency challenges and provide due process to all parties. q

Lynda R. Aycock is a shareholder in the Jacksonville firm of Martin, Ade, Birchfield & Mickler, P.A., and concentrates her practice in the area of commercial real property and land use law. She received her B.S., 1967, from Southeastern Louisiana College, and her J.D., cum laude, 1971, from Cumberland School of Law of Samford University, where she served as a staff member for the inaugural issue of the Cumberland-Samford Law Review. Ms. Aycock is a member of the Northeast Florida Chapter of the Florida Planning and Zoning Association.

This column is submitted on behalf of the Environmental and Land Use Law Section, Robert W. Wells, Jr., and Sid F. Ansbacher, editor.

Environmental & Land Use Law