Senate Bill sb1906c1

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    Florida Senate - 2002                   CS for SB's 1906 & 550

    By the Committee on Comprehensive Planning, Local and Military
    Affairs; and Senators Peaden and Constantine




    316-2162A-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 legislative intent

  8         of the inapplicability of the act to a pending

  9         case in litigation; providing an effective

10         date.

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12  Be It Enacted by the Legislature of the State of Florida:

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14         Section 1.  Section 163.3215, Florida Statutes, is

15  amended to read:

16         163.3215  Standing to enforce local comprehensive plans

17  through development orders.--

18         (1)  Subsections (3) and (4) provide the exclusive

19  methods for an aggrieved or adversely affected party to appeal

20  and challenge the consistency of a development order with a

21  comprehensive plan adopted under this part. The local

22  government that issues the development order is to be named as

23  a respondent in all proceedings under this section. Subsection

24  (3) shall not apply to development orders for which a local

25  government has established a process consistent with the

26  requirements of subsection (4). A local government may decide

27  which types of development orders will proceed under

28  subsection (4). Subsection (3) shall apply to all other

29  development orders that are not subject to subsection (4).

30         (2)  As used in this section, the term "aggrieved or

31  adversely affected party" means any person or local government

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1  that will suffer an adverse effect to an interest protected or

  2  furthered by the local government comprehensive plan,

  3  including interests related to health and safety, police and

  4  fire protection service systems, densities or intensities of

  5  development, transportation facilities, health care

  6  facilities, equipment or services, and environmental or

  7  natural resources.  The alleged adverse interest may be shared

  8  in common with other members of the community at large but

  9  must exceed in degree the general interest in community good

10  shared by all persons. The term includes the owner, developer,

11  or applicant for a development order.

12         (3)(1)  Any aggrieved or adversely affected party may

13  maintain a de novo an action for declaratory, injunctive, or

14  other relief against any local government to challenge any

15  decision of such local government granting or denying an

16  application for, or to prevent such local government from

17  taking any action on, a development order, as defined in s.

18  163.3164, which materially alters the use or density or

19  intensity of use on a particular piece of property which that

20  is not consistent with the comprehensive plan adopted under

21  this part. The de novo action must be filed no later than 30

22  days following rendition of a development order or other

23  written decision, or when all local administrative appeals, if

24  any, are exhausted, whichever occurs later.

25         (2)  "Aggrieved or adversely affected party" means any

26  person or local government which will suffer an adverse effect

27  to an interest protected or furthered by the local government

28  comprehensive plan, including interests related to health and

29  safety, police and fire protection service systems, densities

30  or intensities of development, transportation facilities,

31  health care facilities, equipment or services, or

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1  environmental or natural resources.  The alleged adverse

  2  interest may be shared in common with other members of the

  3  community at large, but shall exceed in degree the general

  4  interest in community good shared by all persons.

  5         (3)(a)  No suit may be maintained under this section

  6  challenging the approval or denial of a zoning, rezoning,

  7  planned unit development, variance, special exception,

  8  conditional use, or other development order granted prior to

  9  October 1, 1985, or applied for prior to July 1, 1985.

10         (b)  Suit under this section shall be the sole action

11  available to challenge the consistency of a development order

12  with a comprehensive plan adopted under this part.

13         (4)  If a local government elects to adopt or has

14  adopted an ordinance establishing, at a minimum, the

15  requirements listed in this subsection, the sole method by

16  which an aggrieved and adversely affected party may challenge

17  any decision of local government granting or denying an

18  application for a development order, as defined in s.

19  163.3164, which materially alters the use or density or

20  intensity of use on a particular piece of property, on the

21  basis that it is not consistent with the comprehensive plan

22  adopted under this part, is by an appeal filed by a petition

23  for writ of certiorari filed in circuit court no later than 30

24  days following rendition of a development order or other

25  written decision of the local government, or when all local

26  administrative appeals, if any, are exhausted, whichever

27  occurs later. An action for injunctive or other relief may be

28  joined with the petition for certiorari. Principles of

29  judicial or administrative res judicata and collateral

30  estoppel apply to these proceedings. Minimum components of the

31  local process are as follows:

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1         (a)  The local process must make provision for notice

  2  of an application for a development order that materially

  3  alters the use or density or intensity of use on a particular

  4  piece of property, including notice by publication or mailed

  5  notice consistent with the provisions of s. 166.041(3)(c)2.b.

  6  and c. and s. 125.66(4)(b)2. and 3., and must require

  7  prominent posting at the job site. The notice must be given

  8  within 10 days after the filing of an application for

  9  development order; however, notice under this subsection is

10  not required for an application for a building permit or any

11  other official action of local government which does not

12  materially alter the use or density or intensity of use on a

13  particular piece of property. The notice must clearly

14  delineate that an aggrieved or adversely affected person has

15  the right to request a quasi-judicial hearing before the local

16  government for which the application is made, must explain the

17  conditions precedent to the appeal of any development order

18  ultimately rendered upon the application, and must specify the

19  location where written procedures can be obtained that

20  describe the process, including how to initiate the

21  quasi-judicial process, the timeframes for initiating the

22  process, and the location of the hearing. The process may

23  include an opportunity for an alternative dispute resolution.

24         (b)  The local process must provide a clear point of

25  entry consisting of a written preliminary decision, at a time

26  and in a manner to be established in the local ordinance, with

27  the time to request a quasi-judicial hearing running from the

28  issuance of the written preliminary decision; the local

29  government, however, is not bound by the preliminary decision.

30  A party may request a hearing to challenge or support a

31  preliminary decision.

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1         (c)  The local process must provide an opportunity for

  2  participation in the process by an aggrieved or adversely

  3  affected party, allowing a reasonable time for the party to

  4  prepare and present a case for the quasi-judicial hearing.

  5         (d)  The local process must provide, at a minimum, an

  6  opportunity for the disclosure of witnesses and exhibits prior

  7  to hearing and an opportunity for the depositions of witnesses

  8  to be taken.

  9         (e)  The local process may not require that a party be

10  represented by an attorney in order to participate in a

11  hearing.

12         (f)  The local process must provide for a

13  quasi-judicial hearing before an impartial special master who

14  is an attorney who has at least 5 years' experience and who

15  shall, at the conclusion of the hearing, recommend written

16  findings of fact and conclusions of law.  The special master

17  shall have the power to swear witnesses and take their

18  testimony under oath, to issue subpoenas and other orders

19  regarding the conduct of the proceedings, and to compel entry

20  upon the land.  The standard of review applied by the special

21  master in determining whether a proposed development order is

22  consistent with the comprehensive plan shall be strict

23  scrutiny in accordance with Florida law.

24         (g)  At the quasi-judicial hearing, all parties must

25  have the opportunity to respond, to present evidence and

26  argument on all issues involved which are related to the

27  development order, and to conduct cross-examination and submit

28  rebuttal evidence. Public testimony must be allowed.

29         (h)  The local process must provide for a duly noticed

30  public hearing before the local government at which public

31  testimony is allowed. At the quasi-judicial hearing, the local

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1  government is bound by the special master's findings of fact

  2  unless the findings of fact are not supported by competent

  3  substantial evidence. The governing body may modify the

  4  conclusions of law if it finds that the special master's

  5  application or interpretation of law is erroneous. The

  6  governing body may make reasonable legal interpretations of

  7  its comprehensive plan and land development regulations

  8  without regard to whether the special master's interpretation

  9  is labeled as a finding of fact or a conclusion of law. The

10  local government's final decision must be reduced to writing,

11  including the findings of fact and conclusions of law, and is

12  not considered rendered or final until officially date-stamped

13  by the city or county clerk.

14         (i)  An ex parte communication relating to the merits

15  of the matter under review may not be made to the special

16  master. An ex parte communication relating to the merits of

17  the matter under review may not be made to the governing body

18  after a time to be established by the local ordinance, which

19  time must be no later than receipt of the special master's

20  recommended order by the governing body.

21         (j)  At the option of the local government, the process

22  may require actions to challenge the consistency of a

23  development order with land development regulations to be

24  brought in the same proceeding.

25         (4)  As a condition precedent to the institution of an

26  action pursuant to this section, the complaining party shall

27  first file a verified complaint with the local government

28  whose actions are complained of setting forth the facts upon

29  which the complaint is based and the relief sought by the

30  complaining party.  The verified complaint shall be filed no

31  later than 30 days after the alleged inconsistent action has

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1  been taken.  The local government receiving the complaint

  2  shall respond within 30 days after receipt of the complaint.

  3  Thereafter, the complaining party may institute the action

  4  authorized in this section.  However, the action shall be

  5  instituted no later than 30 days after the expiration of the

  6  30-day period which the local government has to take

  7  appropriate action.  Failure to comply with this subsection

  8  shall not bar an action for a temporary restraining order to

  9  prevent immediate and irreparable harm from the actions

10  complained of.

11         (5)  Venue in any cases brought under this section

12  shall lie in the county or counties where the actions or

13  inactions giving rise to the cause of action are alleged to

14  have occurred.

15         (6)  The signature of an attorney or party constitutes

16  a certificate that he or she has read the pleading, motion, or

17  other paper and that, to the best of his or her knowledge,

18  information, and belief formed after reasonable inquiry, it is

19  not interposed for any improper purpose, such as to harass or

20  to cause unnecessary delay or for economic advantage,

21  competitive reasons or frivolous purposes or needless increase

22  in the cost of litigation.  If a pleading, motion, or other

23  paper is signed in violation of these requirements, the court,

24  upon motion or its own initiative, shall impose upon the

25  person who signed it, a represented party, or both, an

26  appropriate sanction, which may include an order to pay to the

27  other party or parties the amount of reasonable expenses

28  incurred because of the filing of the pleading, motion, or

29  other paper, including a reasonable attorney's fee.

30         (7)  In any proceeding action under subsection (3) or

31  subsection (4) this section, no settlement shall be entered

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1  into by the local government unless the terms of the

  2  settlement have been the subject of a public hearing after

  3  notice as required by this part.

  4         (8)  In any proceeding suit under subsection (3) or

  5  subsection (4) this section, the Department of Legal Affairs

  6  may intervene to represent the interests of the state.

  7         (9)  Neither subsection (3) nor subsection (4) relieves

  8  the local government of its obligations to hold public

  9  hearings as required by law.

10         Section 2.  It is the intent of the Legislature that

11  this act shall not affect the outcome of Pinecrest Lakes, Inc.

12  v. Schidel, 795 So.2d 191 (Fla. 4th DCA 2001), rehearing

13  denied, 802 So.2d 486.

14         Section 3.  This act shall take effect June 1, 2002.

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    Florida Senate - 2002                   CS for SB's 1906 & 550
    316-2162A-02




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                     Senate Bill 1906 and 550

  3

  4  The CS includes technical and clarifying changes to SB 1906,
    relating to the challenge of local government development
  5  orders for inconsistency with the local government
    comprehensive plan under s. 163.3215, F.S.:
  6
          Clarifies that under subsection (3) of s. 163.3215,
  7        F.S., as amended, when a local government has not
          adopted a special master process, the appropriate cause
  8        of action is a de novo action;

  9        Grants by law affirmative authority to the special
          master to issue subpoenas and compel entry to land;
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          Provides that the local government must be one of the
11        respondents to a petition filed under s. 163.3215, F.S.;

12        Allows local governments the discretion to have an
          alternative dispute resolution process instead of
13        mandating one;

14        Replaces the opportunity for "reasonable discovery,"
          with the requirement that the local process include an
15        opportunity for the disclosure of witnesses and
          exhibits, and an opportunity for the depositions of
16        witnesses; and

17        Provides that the local process may not require that a
          third party be represented by an attorney.
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