Small Scale Plan Amendments: Legislative or Quasi-Judicial in Nature?
In 1997, the Florida Supreme Court decided Martin County v. Yusem, 690 So. 2d 1288 (Fla.
1997), which clarified the standard of review to be applied by courts when reviewing the local government’s decision on an amendment to the local comprehensive plan. The court held that the local government’s decision on a plan amendment is legislative in nature rather than quasi-judicial and, therefore, the deferential “fairly debatable” standard of review applies.1 H owever, the court suggested in a footnote that its holding may not apply in cases involving small scale plan amendments.2
Two recent decisions, one from a circuit court and one from the Fifth District Court of Appeal, have reached conflicting holdings as to the appropriate standard of review for small scale plan amendments. In Grondin v. City of Lake Wales, 5 Fla. L. Weekly Supp. 727 (Fla. 10th Cir. June 25, 1998), the Circuit Court for the 10th Judicial Circuit held that small scale plan amendments are quasi-judicial in nature and, therefore, subject to the “strict scrutiny” standard of review. In Fleeman v. City of St. Augustine Beach, 24 Fla. L. Weekly D58 (Fla. 5th DCA Dec. 18, 1998), the Fifth District Court of Appeal held that small scale plan amendments are legislative in nature and, therefore, subject to the “fairly debatable” standard of review.
Background
• Martin County v. Yusem
Yusem has its roots in the Florida Supreme Court’s 1993 decision in Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993). In that case, the court held that site-specific rezoning decisions constitute the application of policy rather than the formulation of policy and, therefore, are quasi-judicial in nature and subject to “strict scrutiny” review. In the aftermath of Snyder, the district courts applied a fact-based functional analysis in determining whether the adoption of an amendment to the local comprehensive plan was legislative or quasi-judicial nature.3 The functional analysis utilized by the district courts focused on factors such as the size and location of the property subject to the plan amendment, and failed to provide any significant guidance to landowners or local governments.
The Florida Supreme Court rejected the functional analysis used by the district courts and held in Yusem that “all comprehensive plan amendments are legislative decisions subject to the fairly debatable standard of review.”4 The court’s decision was based primarily on its finding that “amendments to a comprehensive plan, like the adoption of the plan itself, result in the formulation of policy.”5 The court also reasoned that the state-level review of plan amendments for consistency with F.S. Ch. 163 is “evidence that when a local government is amending its comprehensive plan, it is engaging in a policy decision.”6 F inally, the court reasoned that the fairly debatable standard of review also applies to the determination of the Department of Community Affairs that the plan amendment is “in compliance” or not “in compliance” with F.S. Ch. 163.7
• Small Scale Plan Amendments—F.S. §§163.3187(1)(c) and (3)
F.S. §163.3187(1)(c) provides that plan amendments “directly related to proposed small scale development activities” are exempt from the twice-per-year limitation on the adoption of amendments to the local comprehensive plan.8 To qualify under this paragraph, the amendment must involve less than 10 acres of property,9 must not amend the text of the plan,10 and must meet other statutory criteria.11
The Department of Community Affairs (DCA) does not review small scale plan amendments to determine whether the amendment is “in compliance” with F.S. Ch. 163.12 H owever, any affected person may seek administrative review of a small scale plan amendment.13 In any such proceeding, the local government’s determination “is presumed to be correct” and “shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of [F.S. Ch. 163].”14
Grondin v. City
of Lake Wales
The first reported decision addressing the standard of review for small scale plan amendments was Grondin, 5 Fla. L. Weekly Supp. 727. In that case, the landowner sought an amendment to the local comprehensive plan to change the future land use map (FLUM) designation of 3.04 acres of property from low density residential (LDR) to neighborhood activity center (NAC) and public institutional (PI).15 The NAC designation would allow commercial development to occur on the property, and the PI designation would allow construction of a fire station.16 N eighboring property owners opposed the proposed FLUM change.17
The city planning department and local planning and zoning board recommended approval of the plan amendment.18 The city commission, after receiving testimony from neighbors regarding the adverse impacts of the commercial development on the surrounding neighborhood, voted not to approve the proposed FLUM amendment.19 The landowner sought certiorari review of the city commission’s decision.
The court acknowledged that the case was one of first impression since “[n]o appellate court has previously ruled on the proper standard of review for a local governmental agency’s decision to approve or deny a request for a small scale plan amendment.”20 A fter noting that the Yusem did not address whether small scale plan amendments were subject to the bright-line rule established in that case, the court analyzed the characteristics of small scale amendments. In this regard, the court reasoned that the legislature exempted those amendments from the stringent public notice requirements and state-level review associated with other plan amendments.21 The court further reasoned that because small scale plan amendments cannot involve changes in the text of the plan, they are more appropriately characterized as the implementation of the stated policies in the plan rather than the broad formulation of policy.22 As such, the court held that the city council’s decision on the small scale plan amendment at issue in the case was quasi-judicial in nature.23
After concluding that the city council’s decision on the plan amendment was quasi-judicial in nature, the court reviewed the decision under the well-established certiorari standards.24 The court concluded that the city council’s decision denying the plan amendment was not based upon substantial competent evidence and, therefore, it quashed the decision.25 The city did not seek review of this decision at the Second District Court of Appeal.
Fleeman v. City of
St. Augustine Beach
The first appellate decision addressing the standard of review for a local government’s decision on a small scale plan amendment is Fleeman, 24 Fla. L. Weekly D58 .26 In that case, the landowner sought a small scale plan amendment to classify less than one-half acre of property along A1A as commercial on the FLUM.27 The city refused to adopt the amendment, and the landowner sought review of that decision by certiorari. The circuit court determined that the city’s decision was legislative in nature and dismissed the petition without prejudice to file a declaratory judgment action.28
The landowner sought certiorari review of the circuit court’s decision. The Fifth District Court of Appeal denied the petition, and agreed with the circuit court that the city’s decision on the small scale plan amendment was legislative in nature.29 The court rejected the landowner’s argument that small scale plan amendments should be “functionally. . . viewed as a policy application process (or quasi-judicial), rather than a policy setting one (or legislative).”30 The court acknowledged that the procedures for small scale plan amendments are “more streamlined than those required for larger ones,” but it concluded that the question being asked—whether to amend the local comprehensive plan—is the same and is “a matter of policy consigned to the discretion of the legislative body.”31
In support of its extension of the Florida Supreme Court’s holding in Yusem to small scale plan amendments, the court stated: “We cannot discern any good reason for the courts to treat small parcel amendments differently than any other amendments or the adoption of comprehensive land use plans. To do so would invite more uncertainty in this still unsettled area of the law.”32
Finally, the court noted that even small scale plan amendments can involve important policy concerns “which are better left to the legislative body, with limited judicial review.”33 The plan amendment at issue in Fleeman involved property located on a major thoroughfare, close to the ocean and near environmentally sensitive land.34
On February 26, 1999, the Fifth District Court of Appeal granted the landowner’s petition to certify its decision to the Florida Supreme Court as “pass[ing] on a question of great public importance.”35 The court also certified a conflict between its decision and the Third District Court of Appeal’s decision in Debes v. City of Key West, 690 So. 2d 700 (Fla. 3d DCA 1997).36 The court framed the issue as whether the proper method for circuit court review of small scale plan amendments is certiorari or by filing a declaratory judgment action.37 R esolution of that issue will also determine the standard of review for small scale plan amendments.
Conclusion
The reasoning in Grondin is more persuasive and is consistent with both Yusem and Snyder. Small scale plan amendments are akin to traditional rezoning decisions since they are limited to FLUM changes. The existing goals, objectives, and policies set forth in the comprehensive plan are unaffected by a small scale plan amendment.38 M oreover, because of the acreage limitations on small scale plan amendments, the local government’s decision will have an impact on a limited number of persons.39
Moreover, the other factors identified by the court in Yusem to support its conclusion that plan amendments are legislative in nature are not present in the case of small scale plan amendments. Unlike normal plan amendments, small scale plan amendments are not subject to state review or oversight. Furthermore, the standard applied in administrative challenges to a small scale plan amendment is “preponderance of the evidence” rather than the “fairly debatable” standard applied in administrative challenges to other plan amendments. The “preponderance of the evidence” standard is more consistent with the certiorari standard of review for quasi-judicial decisions than with the fairly debatable standard for legislative decisions.40
In sum, the decisions in Grondin and Fleeman each attempt to settle the issue left open in Yusem by establishing a bright-line rule regarding the appropriate standard of review for small scale plan amendments. Unfortunately, the courts’ contradictory opinions create uncertainty for landowners and local governments not unlike that which preceded the Florida Supreme Court’s decision in Yusem.41 The Florida Supreme Court should take the opportunity presented to it by the Fifth District Court of Appeal in Fleeman to define the appropriate standard of review for small scale plan amendments and it should determine that such amendments are quasi-judicial in nature and subject to “strict scrutiny” review. q
1 Yusem, 690 So. 2d at 1293–94.
2 Id. at 1293 n.6 (“We do not make any findings concerning the appropriate standard of review for [] small scale development activities.”).
3 Compare Section 28 Partnership, Ltd. v. Martin County , 642 So. 2d 609 (Fla. 4th D.C.A. 1994), rev. denied , 654 So. 2d 920 (Fla. 1995) (decision on plan amendment is legislative in nature), and Martin County v. Section 28 Partnership, Ltd. , 676 So. 2d 532 (Fla. 4th D.C.A.), rev. denied , 686 So. 2d 581 (Fla. 1996) (same), and Board of County Commissioners of Sarasota County v. Karp , 662 So. 2d 718 (Fla. 2d D.C.A. 1995) (same), and City Environmental Services Landfill, Inc. v. Holmes County , 677 So. 2d 1327 (Fla. 1st D.C.A. 1996) (same), and Martin County v. Yusem , 664 So. 2d 976 (Fla. 4th D.C.A. 1995) (same) with Florida Institute of Technology v. Martin County , 641 So. 2d 898 (Fla. 4th D.C.A. 1994), rev. denied , 651 So. 2d 1195 (Fla. 1995) (decision on plan amendment is quasi-judicial in nature).
4 Yusem , 690 So. 2d at 1295. The bright-line rule adopted by the Supreme Court in Yusem was urged by Judge (now Justice) Pariente in her dissenting opinion in the case below. Id. at 1291 (citing the Fourth D.C.A.’s opinion in Yusem , 664 So. 2d at 979).
5 Id. The plan amendment at issue in Yusem would have changed the future land use map classification of 900 acres of property from “rural density” (0.5 dwelling units per acre (du/ac)) to “estate density” (2 du/ac). Id. at 1290.
6 Id. at 1294. In contrast, the court noted that rezonings are considered only at the local level.
7 Id. at 1295 (citing Fla. Stat. §§163.3184(9)(a), (10)(a)).
8 Fla. Stat. § 163.3187(1)(c) (1998 Supp.).
9 Fla. Stat. §163.3187(1)(c)1.
10 Fla. Stat. §163.3187(1)(c)1.d.
11 Fla. Stat. §163.3187(1)(c)1.a.-f. Specifically, the cumulative annual effect of small scale plan amendments may not exceed 80 acres (or 120 acres in charter counties and counties which have established urban infill, urban redevelopment, or downtown revitalization areas).
12 Fla. Stat. §163.3187(3)(a). Small scale plan amendments are not subject to the same level of state review as other plan amendments. See Fla. Stat. §163.3187(1)(c)3; see also Fla. Admin. Code Ann. r. 9J-11.015 (1997).
13 Fla. Stat. § 163.3187(3)(a) (1998 Supp.).
14 Id.
15 Grondin, 5 Fla. L. Weekly Supp. at 728–29.
16 Id. at 727, 729.
17 Id. at 727.
18 Id.
19 Id. The proposed ordinance to revise the FLUM was tentatively approved by the city commission on first reading by a 4-1 vote. On second reading, the ordinance was defeated by a 3-2 vote. Id.
20 Id. at 728.
21 Id.
22 Id.
23 Id.
24 Id. (citing Haines City Community Development v. Heggs , 658 So. 2d 523 (Fla. 1995)).
25 Id .
26 The Fleeman opinion was issued approximately six months after Grondin , but it does not cite to or otherwise reference Grondin . Fleeman, 24 Fla. L. Weekly D58.
27 Id.
28 Id. at D58 n.1.
29 Id. at D58.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
35 Fleeman v. City of St. Augustine Beach , 24 Fla. L. Weekly D575 (Fla. 5th D.C.A., Feb. 26, 1999) (on motion for certification).
36 Id . Debes was decided on April 2, 1997, six days after the Florida Supreme Court’s decision in Yusem . The conflict between Fleeman and Debes is not apparent. It is unclear whether the FLUM change at issue in Debes was processed as a small scale plan amendment since the size of the property is not discussed in the opinion, and the court repeatedly refers to the land use change being sought as a “rezoning.” While it appears that the circuit court reviewed the city’s decision by certiorari and applied the Snyder standard of review, the Third District Court of Appeal stated that the standard of review “is not determinative or even important to our consideration of the case.” Id. at 701 n.4.
37 Fleeman , 24 Fla. L. Weekly at D575.
38 All comprehensive plan amendments must be internally consistent with all other elements of the comprehensive. plan. Fla. Stat. §§163.3177(2),. 3187(2) (1998 Supp.). Small scale plan amendments are limited to FLUM changes and effectively constitute the application of those existing policies to the property subject to the amendment. See Snyder , 627 So. 2d at 474 (concluding that site-specific rezonings as the application of policy rather than the formulation of policy).
39 See id. (distinguishing between comprehensive rezonings which are legislative in nature and site-specific rezonings which are quasi-judicial in nature).
40 Cf. Yusem , 690 So. 2d at 1295 (finding support for the application of the “fairly debatable” standard of review in a judicial “appeal” of the local government’s decision on a plan amendment in the application of that same standard in administrative challenges to the Department of Community Affairs’ compliance determination).
41 See id. (noting that the bright-line rule adopted by the court “further[ed] the proper administration of justice in Florida”).
Kent Wetherell is an associate with Hopping Green Sams & Smith, P.A. in Tallahassee, where his practice focuses on administrative law, land use law, and legislative lobbying. He received his undergraduate and law degrees from Florida State University. Mr. Wetherell is the 1998-99 chair of the Environmental and Land Use Law Section legislative committee.
This column is submitted on behalf of the Environmental and Land Use Law Section, Ralph A. DeMeo, chair, and Melissa Anderson, editor.
