Senate Bill sb1906
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
By Senator Peaden
1-1087-02
1 A bill to be entitled
2 An act relating to local-government development
3 orders; amending s. 163.3215, F.S.; revising
4 the methods for challenging the consistency of
5 a development order with a comprehensive plan;
6 redefining the term "aggrieved or adversely
7 affected party"; providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Section 163.3215, Florida Statutes, is
12 amended to read:
13 163.3215 Standing to enforce local comprehensive plans
14 through development orders.--
15 (1) Subsections (3) and (4) provide the exclusive
16 methods for an aggrieved or adversely affected party to appeal
17 and challenge the consistency of a development order with a
18 comprehensive plan adopted under this part. The local
19 government that issues the development order is to be named as
20 the respondent in all proceedings under this section.
21 (2) As used in this section, the term "aggrieved or
22 adversely affected party" means any person or local government
23 that will suffer an adverse effect to an interest protected or
24 furthered by the local-government comprehensive plan,
25 including interests related to health and safety, police and
26 fire protection service systems, densities or intensities of
27 development, transportation facilities, health care
28 facilities, equipment or services, or environmental or natural
29 resources. The alleged adverse interest may be shared in
30 common with other members of the community at large, but must
31 exceed in degree the general interest in community good shared
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
1-1087-02
1 by all persons. The term includes the owner, developer, or
2 applicant for a development order.
3 (3)(1) Any aggrieved or adversely affected party may
4 maintain an action for declaratory, injunctive, or other
5 relief against any local government to challenge any decision
6 of local government granting or denying an application for, or
7 to prevent such local government from taking any action on, a
8 development order, as defined in s. 163.3164, which materially
9 alters the use or density or intensity of use on a particular
10 piece of property which that is not consistent with the
11 comprehensive plan adopted under this part. The action must be
12 filed no later than 30 days following rendition of a
13 development order or other written decision, or when all local
14 administrative appeals, if any, are exhausted, whichever
15 occurs later.
16 (2) "Aggrieved or adversely affected party" means any
17 person or local government which will suffer an adverse effect
18 to an interest protected or furthered by the local government
19 comprehensive plan, including interests related to health and
20 safety, police and fire protection service systems, densities
21 or intensities of development, transportation facilities,
22 health care facilities, equipment or services, or
23 environmental or natural resources. The alleged adverse
24 interest may be shared in common with other members of the
25 community at large, but shall exceed in degree the general
26 interest in community good shared by all persons.
27 (3)(a) No suit may be maintained under this section
28 challenging the approval or denial of a zoning, rezoning,
29 planned unit development, variance, special exception,
30 conditional use, or other development order granted prior to
31 October 1, 1985, or applied for prior to July 1, 1985.
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
1-1087-02
1 (b) Suit under this section shall be the sole action
2 available to challenge the consistency of a development order
3 with a comprehensive plan adopted under this part.
4 (4) If a local government elects to adopt or has
5 adopted an ordinance establishing, at a minimum, the
6 requirements listed in this subsection, the sole method by
7 which an aggrieved and adversely affected party may challenge
8 any decision of local government granting or denying an
9 application for a development order, as defined in s.
10 163.3164, which materially alters the use or density or
11 intensity of use on a particular piece of property, on the
12 basis that it is not consistent with the comprehensive plan
13 adopted under this part, is by a petition for certiorari filed
14 in circuit court no later than 30 days following rendition of
15 a development order or other written decision of the local
16 government, or when all local administrative appeals, if any,
17 are exhausted, whichever occurs later. An action for
18 injunctive or other relief may be joined with the petition for
19 certiorari. Principles of judicial or administrative res
20 judicata and collateral estoppel apply to these proceedings.
21 Minimum components of the local process are as follows:
22 (a) The local process must make provision for notice
23 of an application for a development order that materially
24 alters the use or density or intensity of use on a particular
25 piece of property, including notice by publication or mailed
26 notice consistent with the provisions of s. 166.041(3)(c)2.b.
27 and c. and s. 125.66(4)(b)2. and 3., and must require
28 prominent posting at the job site. The notice must be given
29 within 10 days after the filing of an application for
30 development order; however, notice under this subsection is
31 not required for an application for a building permit or any
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
1-1087-02
1 other official action of local government which does not
2 materially alter the use or density or intensity of use on a
3 particular piece of property. The notice must clearly
4 delineate that an aggrieved or adversely affected person has
5 the right to request a quasi-judicial hearing before the local
6 government for which the application is made, must explain the
7 conditions precedent to the appeal of any development order
8 ultimately rendered upon the application, and must specify the
9 location where written procedures can be obtained that
10 describe the process, including how to initiate the
11 quasi-judicial process, the timeframes for initiating the
12 process, and the location of the hearing. The process must
13 include an opportunity for an alternative dispute resolution
14 and may include a stay of the formal quasi-judicial hearing
15 for this purpose.
16 (b) The local process must provide a point of entry
17 consisting of a written preliminary decision, at a time and in
18 a manner to be established in the local ordinance, with the
19 time to request a quasi-judicial hearing running from the
20 issuance of the written preliminary decision; the local
21 government, however, is not bound by the preliminary decision.
22 A party may request a hearing to challenge or support a
23 preliminary decision.
24 (c) The local process must provide an opportunity for
25 participation in the process by an aggrieved or adversely
26 affected party, allowing a reasonable time for the party to
27 prepare and present a case for the quasi-judicial hearing.
28 (d) The local process must provide an opportunity for
29 reasonable discovery before a quasi-judicial hearing.
30 (e) The local process must provide for a
31 quasi-judicial hearing before an independent special master
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
1-1087-02
1 who is an attorney who has at least 5 years' experience and
2 who shall, at the conclusion of the hearing, recommend written
3 findings of fact and conclusions of law.
4 (f) At the quasi-judicial hearing all parties must
5 have the opportunity to respond, to present evidence and
6 argument on all issues involved which are related to the
7 development order, and to conduct cross-examination and submit
8 rebuttal evidence. Public testimony must be allowed.
9 (g) The standard of review applied by the special
10 master is to be strict scrutiny in accordance with Florida
11 law.
12 (h) The local process must provide for a duly noticed
13 public hearing before the local government at which public
14 testimony is allowed. At the quasi-judicial hearing the local
15 government is bound by the special master's findings of fact
16 unless the findings of fact are not supported by competent
17 substantial evidence. The governing body may modify the
18 conclusions of law if it finds that the special master's
19 application or interpretation of law is erroneous. The
20 governing body may make reasonable interpretations of its
21 comprehensive plan and land development regulations without
22 regard to whether the special master's interpretation is
23 labeled as a finding of fact or a conclusion of law. The local
24 government's final decision must be reduced to writing,
25 including the findings of fact and conclusions of law, and is
26 not considered rendered or final until officially date-stamped
27 by the city or county clerk.
28 (i) An ex parte communication relating to the merits
29 of the matter under review may not be made to the special
30 master. An ex parte communication relating to the merits of
31 the matter under review may not be made to the governing body
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
1-1087-02
1 after a time to be established by the local ordinance, which
2 time must be no later than receipt of the recommended order by
3 the governing body.
4 (j) At the option of the local government the process
5 may require actions to challenge the consistency of a
6 development order with land development regulations to be
7 brought in the same proceeding.
8 (k) The local process must provide for authority by
9 the special master to issue and enforce subpoenas and compel
10 entry upon the land.
11 (4) As a condition precedent to the institution of an
12 action pursuant to this section, the complaining party shall
13 first file a verified complaint with the local government
14 whose actions are complained of setting forth the facts upon
15 which the complaint is based and the relief sought by the
16 complaining party. The verified complaint shall be filed no
17 later than 30 days after the alleged inconsistent action has
18 been taken. The local government receiving the complaint
19 shall respond within 30 days after receipt of the complaint.
20 Thereafter, the complaining party may institute the action
21 authorized in this section. However, the action shall be
22 instituted no later than 30 days after the expiration of the
23 30-day period which the local government has to take
24 appropriate action. Failure to comply with this subsection
25 shall not bar an action for a temporary restraining order to
26 prevent immediate and irreparable harm from the actions
27 complained of.
28 (5) Venue in any cases brought under this section
29 shall lie in the county or counties where the actions or
30 inactions giving rise to the cause of action are alleged to
31 have occurred.
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
1-1087-02
1 (6) The signature of an attorney or party constitutes
2 a certificate that he or she has read the pleading, motion, or
3 other paper and that, to the best of his or her knowledge,
4 information, and belief formed after reasonable inquiry, it is
5 not interposed for any improper purpose, such as to harass or
6 to cause unnecessary delay or for economic advantage,
7 competitive reasons or frivolous purposes or needless increase
8 in the cost of litigation. If a pleading, motion, or other
9 paper is signed in violation of these requirements, the court,
10 upon motion or its own initiative, shall impose upon the
11 person who signed it, a represented party, or both, an
12 appropriate sanction, which may include an order to pay to the
13 other party or parties the amount of reasonable expenses
14 incurred because of the filing of the pleading, motion, or
15 other paper, including a reasonable attorney's fee.
16 (7) In any challenge action under subsections (3) or
17 (4) this section, no settlement shall be entered into by the
18 local government unless the terms of the settlement have been
19 the subject of a public hearing after notice as required by
20 this part.
21 (8) In any challenge suit under subsections (3) or (4)
22 this section, the Department of Legal Affairs may intervene to
23 represent the interests of the state.
24 (9) Subsections (3) or (4) do not relieve the local
25 government of its obligations to hold public hearings as
26 required by law.
27 Section 2. This act shall take effect June 1, 2002.
28
29
30
31
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 1906
1-1087-02
1 *****************************************
2 SENATE SUMMARY
3 Creates the exclusive methods for challenging the
consistency of a local-government development order with
4 a local-government comprehensive plan.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
8
CODING: Words stricken are deletions; words underlined are additions.