UNINTENDED CONSEQUENCES OF GROWTH MANAGEMENT LEGISLATION RELATED TO PROPERTY RIGHTS |
|
The legislature passed House Bill 59 in the 2021 Legislative Session, which amended Part II of Chapter 163, with the goal of ensuring that protections for private property rights are a part of all local comprehensive plans. Specifically, Section 163.3177(6)(i)2, Florida Statutes (Chapter 2021-195, Laws of Florida), now requires a local government to adopt and include a property rights element in its comprehensive plan for any proposed plan amendment initiated after July 1, 2021.
As listed in Section 163.3177(6)(i), F.S., a local government may adopt its own property rights element or use the following statement of rights:
The following rights shall be considered in local decision making:
- The right of a property owner to physically possess and control his or her interests in the property, including easements, leases, or mineral rights.
- The right of a property owner to use, maintain, develop, and improve his or her property for personal use or for the use of any other person, subject to state law and local ordinances.
- The right of the property owner to privacy and to exclude others from the property to protect the owner's possessions and property.
- The right of a property owner to dispose of his or her property through sale or gift.
It is expected, and we are seeing, that most municipalities are responding to House Bill 59 by adopting the statutory language verbatim. Some local governments are intending to adopt their own property rights element. If a local government develops their own element language, the element must not conflict with the statement of rights provided by the statute.
|
|
United States Supreme Court Holds that Florida Failed to Prove Harm Caused by Georgia’s Alleged Overconsumption of Interstate Waters
The State of Florida (“Florida”) brought suit against the State of Georgia (“Georgia”) seeking the equitable apportionment of water from interstate rivers in the Apalachicola-Chattahoochee-Flint River Basin. The state alleged that Georgia, its upstream neighbor, “consumes more than its fair share of water from these interstate rivers.” Florida claimed that Georgia’s overconsumption harmed its economic and ecological interests and thus, sought a decree requiring Georgia to reduce its consumption. Ultimately, the Supreme Court held that Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption of interstate river waters caused serious harm to Florida’s fisheries, river wildlife, and plant life. View More
|
Third DCA Holds that Circuit Court Applied the Correct Law in Denying Publix’s Petition for First-Tier Certiorari Regarding the New Placement of a Liquor Store
Publix Super Markets, Inc. (“Publix”) sought to place a liquor store in an empty location in a shopping center, which was zoned BU-2, Special Business District. Because another liquor store was located within 1,500 feet of Publix’s proposed liquor store location, Publix required: (1) a Special Exception, which would allow them to use the empty location for a liquor store, and (2) a Non-Use Variance, which would allow Publix’s proposed liquor store to be open every Sunday of the year. In 2017, the Community Zoning Appeals Board (“CZAB”) held a public hearing regarding Publix’s application and subsequently voted to deny both parts. Publix then petitioned first-tier certiorari review and the court granted Publix’s petition. After several appeals and remands, the Third DCA ultimately denied Publix’s petition for certiorari. View More
|
Second DCA Holds that the City of Palmetto’s Enforcement of Annexation Agreement was Time-Barred
The City of Palmetto (the “City”) brought an action for declaratory relief and specific performance in an effort to enforce an annexation agreement against the Ranuccis, the subdivision lot owners, and the Amberwynd of Snead Island Homeowners Association (the “HOA”). The City specifically sought a declaration that the Ranucci lot was contiguous to the City’s property, that its annexation agreement with the prior owner of the lot was both valid and enforceable, that the Ranuccis, as owners, were required to petition for annexation under the annexation agreement, and that the Ranuccis and HOA were equitably estopped from refusing to perform under the annexation agreement. The circuit court entered final judgment in favor of the City, and the Ranuccis and HOA appealed. The Second DCA reversed, reasoning that the City’s claim for specific performance and declaratory relief accrued and the five-year limitations period began to run when the lot became contiguous to the City’s property and the Ranuccis failed to petition for annexation. The court also reasoned that the failure of the Ranuccis and the HOA to petition for annexation were not continuing breaches of the annexation and therefore, the City’s claims accrued when the Ranuccis and HOA first failed to petition for annexation. View More
|
Third DCA Affirms Circuit Court’s Decision on Zoning Amendment Challenge Alleging Reverse Spot Zoning
The Village of Palmetto Bay (the “Village”) proposed an amendment to its zoning map after learning that Yacht Club by Luxcom (the “Club”) wanted to develop a large-scale hospital campus on a 71-acre parcel in the Village. The Club challenged this amendment, alleging the changes constituted “impermissible reverse spot zoning.” When the circuit court denied their petition, the Club sought review from the Third DCA. The Third DCA affirmed, holding that the circuit court was correct in applying a substantial competent evidence standard when scrutinizing the facts of the Village’s zoning decision. Additionally, the Third DCA observed that even though some evidence in the record conflicted with the Village’s decision, substantial evidence remained to support the Village’s zoning decision. View More
|
Second DCA Examines Florida Environmental Protection Act’s Injunction Provision in Lido Key Shoreline Restoration Case
The City of Sarasota (the “City”) applied for a joint coastal permit (“JCP”) to restore Lido Key’s shoreline (the “Restoration Project”). The Florida Department of Environmental Protection (“FDEP”) granted the JCP, but the Siesta Key Association of Sarasota (“SKA”) sued the City to stop it from moving forward with the Restoration Project. SKA brought its suit under the Florida Environmental Protection Act (the “Act”), which allows Florida citizens and political subdivisions to stop entities from violating any laws which protect Florida’s natural resources. In one count of its complaint, SKA alleged it could stop the City because the Restoration Project required county, not just state, approval. The City moved to dismiss this count, arguing that the Act requires only one valid permit and that, because FDEP granted the JCP, SKA could not use the Act to stop the Restoration Project. The trial court, agreeing with the City, dismissed the count. The Fourth DCA affirmed, explaining that the Act “does not require the person or government agency to hold every potentially relevant permit; it only requires the person or government agency to hold and act pursuant to a ‘valid permit or certificate’ covering such operations.” View More
|
|
Third DCA Holds that Amendments to the Florida Statutes on Condominiums Do Not Apply Retroactively Without Express Statutory Intent
The dispute arose out of the operation of the Z Ocean Hotel located in South Beach (the “Building”). The De Soleil Beach Residential Condominium Association, Inc. (the “Condo Association”) suspended the voting rights of the South Beach Resort Development, LLC and Louis Taic (the “Developers”) for failure to pay specific assessments, in violation of the conditions precedent in the Declaration of Condominium. The Third DCA held that this suspension violated the plain language of the Declaration of Condominium. The court reasoned that because the Declaration of Condominium was recorded in 2006 and the Condominium Act was not amended to permit the suspension of voting rights of a member due to nonpayment of any monetary obligation until 2010, the Condo Association did not have the right to suspend the Developer’s voting rights. Further, the Declaration of Condominium provided for specific remedies when a unit owner became delinquent in payment of fees, and voting rights suspension was not among them. View More
|
Third DCA Holds Florida Statute Requiring Petitioner of Eminent Domain Proceedings to Deposit Judgment Amount within Twenty Days Does Not Apply to Inverse Condemnation Proceedings
Galleon Bay Corporation (“Galleon Bay”) appealed the trial court’s order denying Galleon Bay’s post-judgment Motion to Declare Final Order Null and Void (the “Motion”), alleging that Monroe County and the State of Florida violated section 73.111, Florida Statutes after Galleon Bay successfully obtained a judgment in an inverse condemnation action. Section 73.111 requires a petitioner to deposit the judgment amount into the registry of the court within 20 days of the rendition of the judgment or else the proceedings are null and void. The trial court entered judgment in favor of Galleon Bay in the inverse condemnation proceeding and awarded Galleon Bay $480,000. Monroe County failed to deposit $480,000 into the court registry within 20 days after the trial court rendered the judgment. Ultimately, the Third DCA affirmed the trial court’s order denying Galleon Bay’s Motion because section 73.111 only applies to a “petitioner” of an eminent domain proceeding, not inverse condemnation proceeding. The Third DCA held that section 73.111 does not apply to inverse condemnation proceedings initiated by a landowner. View More
|
Second DCA Remands City of Holmes Beach Cases to Determine Entitlement to Attorneys’ Fees
The City of Holmes Beach (the “City”) challenged a circuit court order denying its motion for attorney’s fees and costs under the Bert J. Harris, Jr., Private Property Rights Protection Act, section 70.001, Florida Statutes (“Bert Harris Act”). The Second DCA reversed and remanded for further proceedings consistent with the holding in City of Holmes Beach v. Coral Escapes of Holmes Beach, LLC, where the court remanded to determine the City’s entitlement to attorney’s fees based on whether the offer “reasonably would have resolved the claim fairly to the property owner if the settlement offer had been accepted by the property owner.” The Coral Escapes court stated that, to be entitled to fees, the government entity must prevail in the action and the court must find that the property owner did not accept a “bona fide settlement offer” that would have “reasonably and fairly” resolved the claim. View More
|
United States Supreme Court Affirms a Treasured Right of Landownership: The Right to Exclude
Agricultural employers in California filed suit seeking to enjoin enforcement of an access regulation. This regulation mandates that agricultural employers allow union organizers to enter their property for up to three hours per day, 120 days per year. The California employers asserted that the regulation appropriated an easement for union organizers to enter their property without compensation—constituting “an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments.” The district court denied the employers’ motion for a preliminary injunction and dismissed the complaint. It determined that the regulation did not constitute a per se physical taking because it did not permit the public to access the employers’ properties in a “permanent and continuous manner.” The Court of Appeals for the Ninth Circuit affirmed this judgment and the United States Supreme Court granted certiorari. It held that California’s access regulation constitutes a per se physical taking, reasoning that the regulation appropriates the owners’ right to exclude third parties from their land—“one of the most treasured rights” of property ownership. View More
|
First District Court of Appeal Holds Consistency Challenges under Section 163.3215, Florida Statutes Are Not Limited to Challenges to Use, Density, or Intensity in Direct Conflict with Second District Court of Appeal Case Law
The First DCA has expanded the scope of claims available under section 163.3215, Florida Statutes. Section 163.3215 is an action to challenge the consistency of a development order and a local government’s comprehensive plan. Until this case, the leading case in Florida on this issue, Heine v. Lee County, which was decided by the Second DCA, held that section 163.3215 claims were limited to challenging the land use, density, or intensity of use. The Imhof v. Walton County court held that claims are not limited to land use, density, or intensity of use and certified conflict with the Second DCA in order for the Florida Supreme Court to settle this important issue. View More
|
|
|
Please join us in welcoming six new members to our team!
|
|
|
|
|
Felicia L. Kitzmiller
Tallahassee
|
|
Amelia A. Savage
Tallahassee
|
|
Susan L. Stephens
Tallahassee
|
|
Erin J. Tilton
Tallahassee
|
|
Carl's Practice: Carl has nearly 20 years of experience counseling clients on solid and hazardous waste management and compliance, waste recycling and clean up, alternative fuels, and hazardous substance and pollutant release issues. He routinely advises utility, industrial and chemical manufacturing clients regarding the remediation and redevelopment of large-scale contaminated properties in relation to both groundwater and soil, including the use of risk-based corrective action and brownfield incentives and grant programs. Carl also represents clients on regulatory and compliance matters at federal, state and local levels, including representation before the U.S. Environmental Protection Agency, U.S. Department of Agriculture, U.S. Department of Justice and Florida Department of Environmental Protection. He is highly skilled in defending agency enforcement actions resulting from facility inspections, accidental releases, alleged permit violations, and historic site contamination.
Vinette's Practice: Vinette represents private and public sector clients before local, regional and state agencies, courts and elected bodies regarding land use and real estate development issues. She focuses her practice on the defense and negotiation of complex approvals under Florida’s growth management laws and local government regulations. Vinette counsels clients in a wide-range of matters involving entitlements, permitting, compliance, licensing, rezonings, special districts, Development of Regional Impact (DRIs) review and rescission, comprehensive planning, zoning and strategic planning as well as development agreements. She is also experienced in challenging, securing and defending development entitlements in formal hearings before the Division of Administrative Hearings and circuit and appellate courts.
Felicia's Practice: Felicia focuses on all aspects of environmental law, including mitigation banking, permitting, easements, imperiled species compliance and more. She also has particular experience in title analysis and assists clients in resolving multi-faceted issues through the administrative process, litigation or legislation.
Amelia's Practice: Amelia focuses primarily on Environmental & Natural Resources law, ranging from mining operations, to single-family docks, to energy facilities, to wetland mitigation banks, to large scale developments, to water supply, matters and beyond. Amelia helps clients obtain regulatory environmental permits from federal, state and local agencies, including consulting with supporting agencies on wildlife issues. She assists clients and agencies on issues related to threatened and endangered species as well as participates in rulemaking regarding imperiled species and other environmental rules. Amelia also represents clients in obtaining proprietary authorizations to use lands owned by the state of Florida, both with regards to upland and submerged land parcels. She is highly skilled in defending environmental permits from challenges before federal and state courts as well as the Division of Administrative Hearings.
Susan's Practice: Susan is Board Certified by The Florida Bar in State & Federal Government & Administrative Practice. She has over 25 years of experience practicing environmental & natural resource and administrative law, including rulemaking practice and procedure and administrative litigation. Susan represents clients before various federal, state, regional, and local environmental agencies in connection with the obtainment, interpretation, compliance and enforcement of environmental permits for regulated industrial, commercial, and development activities. This representation includes matters related to resource extraction, wetlands and mitigation banks, agritourism, wastewater, submerged lands, and state and federal listed wildlife. Susan has extensive experience assisting in the development of Florida’s major environmental policy and regulatory initiatives and is skilled in defending state and federal environmental permits against both administrative and judicial challenges.
Erin's Practice: Erin represents private and public sector clients before local, regional and state agencies, courts and elected bodies on environmental, real estate development and land use matters. She has experience advising clients on a wide-range of complex land use permitting and entitlement issues, including comprehensive plans and amendments, rezonings, variances, concurrency and development agreements, Development of Regional Impact (DRIs) review and rescission and other related aspects of securing development authorization. She is skilled in developing and implementing litigation strategy as it relates to obtaining, challenging and defending development approvals.
|
|
 |
QUALIFIED OPPORTUNITY
ZONES
|
View our web-based tool for searching and verifying locations within QZones. Search by address, municipality, county, or census tract. |
|
|
|
EXECUTIVE ORDER PERMIT EXTENSION TRACKER |
View our online tool to track EOs declaring a state of emergency in Florida. Research whether opportunities exist to extend the expiration of those permits. |
|
|
|
RECENT STEARNS WEAVER MILLER UPDATES
-
9/23/21: Carl Eldred Joins Stearns Weaver Miller’s Statewide Land Development, Zoning & Environmental Practice
-
9/22/21: FWC Seeks Public Input on Beach-Nesting Birds Draft Guidelines
-
7/14/21: COVID-19 State of Emergency Lapses: Extend Your Permits NOW
|
|
*Manuel Agosto-Matos, Ken Metcalf, Yuliya Olvy, Chris Smith, David Smith and Cynthia Spidell are not attorneys and are not authorized to practice law.
Ken, David and Cynthia are highly experienced planners. Ken and Cynthia are AICP certified.
Chris is a highly experienced GIS analyst.
Manuel and Yuliya are highly experienced real estate analysts.
|
|
Special thanks to those who assisted in the drafting of this alert:
- Landus Anderson: Third year Juris Doctor Candidate at Florida State University College of Law
- Caroline Calavan: Second year Juris Doctor Candidate at Stetson University College of Law
- Connor Daughton: Third year Juris Doctor Candidate at Duke University School of Law
- Rebekah Kaufman: Third year Juris Doctor Candidate at Florida State University College of Law
- Abbie Tamayo: Second year Juris Doctor Candidate at Florida State University College of Law
|
|
About Stearns Weaver Miller
Stearns Weaver Miller Weissler Alhadeff & Sitterson is a full service law firm with offices in Miami, Fort Lauderdale, Tampa, Tallahassee, and Coral Gables, Florida. We offer multidisciplinary solutions with a focus on Litigation & Dispute Resolution, Bankruptcy & Creditors' Rights, Corporate & Securities, Government & Administrative, Labor & Employment, Real Estate, Real Estate Finance, Commercial Finance and Loan Restructuring & Workouts, Land Development, Zoning & Environmental, Marital & Family Law and Tax. For more information, please visit stearnsweaver.com.
|
|
|
|
|
|
|
