How Citizens Can Achieve "Standing" to Litigate

Citizen Enforcement of the Growth Management Act

By Terrell K. Arline, Legal Director
1000 Friends of Florida
February 24, 1998

In 1985, the Florida Legislature resolved to manage growth in this state by requiring that every county and municipality adopt, implement and follow a comprehensive plan when approving development.(1) Public participation in the creation of these plans was a fundamental requirement. An administrative rule was adopted by the Department of Community Affairs, which set forth the minimum criteria for the contents of these plans, and the Department was given the responsibility to review, comment upon and approve every plan and plan amendment (2). When a local government failed to adopt a plan that met the minimum criteria rule, both the public and the Department were empowered to file a petition for formal administrative hearing challenging the plan. The Governor and Cabinet sat as a reviewing body, and was required to set forth remedial actions, which the local government could adopt to bring these defective plans into compliance. It was also empowered to impose sanctions, which has seldom been done.

It has been almost 13 years since the passage of the Growth Management Act. Every local government, except several small municipalities and new municipalities created in the past few years, have adopted plans, which have been found to be in compliance. Consequently, the task now at hand is for the local governments to implement these plans with the adoption of appropriate land development regulations and to follow the plans when reviewing proposals to develop land. Unfortunately, the Department of Community Affair is not empowered to ensure that the plans are properly implemented and complied with by the local governments when making particular land use decisions.

The passage of the Growth Management Act was an attempt to empower the citizens with the tools to properly manage growth. Now that the plans have been done, this growth management system can only succeed through the diligent actions of the citizenry of each local government. To do this, they must read and understand what is in their comprehensive plan. They must closely monitor the decisions of their local governments to make sure they are consistent with the plan. Finally, if circumstances warrant, citizens should cooperate to challenge actions of government that violate the Growth Management Act. What follows is a brief review of this process, general advice on how best to proceed, and discussion of some of the most pertinent and recent decisions by courts and administrative agencies bearing on the Act.

Comprehensive Planning:

Plan Amendments. Since virtually every local government has adopted a plan which has been found to be in compliance, the current focus of the planning process involves the amendment of these plans. Amendments are often proposed, because a land owner desires to develop in a way that is not consistent with the plan. Thus, the amendment is designed to make the plan consistent with the proposed development. This situation usually involves an amendment to the Future Land Use Map (FLUM), not a text amendment.

Other types of plan amendments are those resulting from the evaluation and appraisal report (EAR), which is an overview of the success or failure of the plan required by state law. (3) A timetable for local governments to adopt an EAR is set forth in an administrative rule. (4) As of this date, only the major coastal counties and cities have done an EAR. Those of the smaller local governments, the inland counties, and those in the panhandle are due to be adopted over the next few years.

The EAR process involves the adoption of an EAR by the local government at a public hearing, which has to meet certain limited minimum criteria. (5) The Department then must review the EAR for "sufficiency." It is important to realize that this is not a compliance determination, which means the Department will still review EAR-based plan amendments for consistency with the minimum criteria rule. No plan amendments, except those dealing with developments of regional impact, compliance agreements, and those that implement the EAR, may be adopted by the local government until the EAR has been determined to be sufficient. Of critical importance is the requirement that the local government must adopt amendments to the plan called for in the EAR. (6)

As a consequence of this EAR process, citizens around the state can expect to see "EAR-based amendments" to their plans being proposed by their local governments. These can be numerous. Lee County, for example proposed more than 600 EAR-based amendments in 1995. EAR-based amendments may, in fact, weaken the plan and delete "good" policies in the plan. Experience shows that local governments may use the EAR process to delete provisions in the plan calling for special studies or programs to be done by a certain date, which may have passed. While these plan provisions may in fact exceed the minimum criteria, many are the well-intentioned acts of prior elected boards proposed as part of the original adoption process of the plan.

Consequently, close review of the EAR process is advisable. Successful citizen input involves an organized review of the plan in relation to the proposed EAR, knowledge of current data and analysis, and involvement in the development and adoption of the EAR through contacts with local officials and DCA. Similar vigilance is then required to review the EAR-based amendments.

Procedure. There are two public hearings required to adopt a plan amendment. Many local governments also hold workshops prior to proposing a plan amendment. Public participation in the plan amendment process is essential if the plan is to mean anything.

Transmittal Hearing. The local government, at a public hearing, may decide to transmit a proposed plan amendment to the Department for review. Upon receipt of the amendments, the Department has 60 days to review it, consider any comments of the regional and state agencies, issue an objections, recommendations and comments report (ORC), and return the amendment with the ORC to the local government for further consideration. Thereafter, the local government has 60 days to consider the ORC and adopt the amendment. (120 days for EAR amendments).

The case of Department of Community Affairs v. Hamilton County, 95 ER FALR 101 (Final Order issued August 9, 1995), held that this 60-day requirement to adopt was not jurisdictional. This means the failure of the local government to adopt an amendment within 60 days of receipt of the ORC does not automatically invalidate the amendment. It is, in fact, quite common for local governments to take longer than the 60-day period to adopt, which if the result of additional public hearings and consideration might result in a better plan amendment.

The decision of whether to amend a comprehensive plan is legislative in nature. This means that it is appropriate for citizens to discuss plan amendment proposals in writing or in person with their elected officials. There is no ex parte prohibition related to comprehensive plan amendments. Martin County v. Yusem, 690 So.2d 1288 (Fla. 1997). Thus, it is advisable to review the proposed amendment carefully in relation to the comprehensive plan and the minimum criteria rule. An amendment which is inconsistent with other policies in the plan cannot be adopted. (7) Citizens would do well to prepare a well-organized, written presentation of their position and deliver it to each local elected official and the Department staff person who will review the amendment. (8)

Adoption hearing. If the amendment is adopted at a second public hearing, it is sent to the Department again for a compliance review, which takes 45 days. A compliance review requires the Department to determine whether the amendment is consistent with the minimum criteria rule and the Growth Management Act. (9) Department staff will prepare a memorandum regarding compliance. It is advisable to contact the person doing this memo to appraise them of your concerns within a the first couple of weeks after the adopted amendment has been sent to the Department.

Upon determining whether the plan amendment is in compliance or not in compliance, the Department will publish a Notice of Intent (NOI) in the local newspaper. It is this determination that constitutes agency action and provides the point of entry for affected persons. (10) If the Department finds that the amendment is in compliance and it is not challenged by anyone, the amendment becomes effective and can no longer be challenged. The amendment is not effective and cannot authorize development until this happens.

An affected person who can become a party in administrative proceedings dealing with a plan amendment is any person who is a resident of or who owns or operates a business in the jurisdiction and who provided written or oral comments, recommendations or objections to the local government during the time between the transmittal and the adoption hearings. It also includes adjacent local governments."

If the Department determines that the amendment is not in compliance with state law, it will prepare a Statement of Intent (SOI) setting forth the reasons why the amendment is not in compliance, and it will initiate a formal administrative proceeding by filing a petition and the (SOI) with the Division of Administrative Hearings (DOAH). (12) Any affected person may intervene in that hearing. Any new issue not raised by the Department in the SOI, may be raised by a 3rd party within 21 days of the issuance of the NOI. If the Department determines that the amendment is in compliance, any affected person has 21 days to file a petition for formal administrative proceedings with the Department, or the amendment will become effective. (13)

It should be noted that if the amendment is less than 10 acres, it is not reviewed by the Department and the procedures to challenge it are different. (14) In this case, citizens who desire to challenge small scale amendments must file a petition with the Division of Administrative Hearings within 30 days from the date the local government adopted the amendment. The burden of proof has been relaxed in these cases to the preponderance of the evidence standard.

The case of St. George Plantation Owners v. Franklin County, et al., 97 ER FALR 64 (Final Order of Administration Commission issued March 25, 1997), held that because a 9.6 acre amendment authorizing a change from residential to commercial land use failed to include the adjacent five-acre sewage treatment facility being built to serve the project, the amendment was not a small scale amendment.

In 1996, the Florida Legislature provided that the Department could designate five local governments as "sustainable communities." (15) Martin County, Tampa/Hillsborough County, Ocala, Boca Raton, and Orlando were designated by the Department through written agreement. Procedures to adopt plan amendments and to approve new DRIs in these sustainable communities are different that the rest of the state. While the Department may agree to provide technical assistance and review plan amendments and DRIs in the agreement, it does not issue an ORC or determine if the amendment is in compliance. Citizens who oppose plan amendments in sustainable communities, must file a petition with the Division of Administrative Hearing withing 30 days of the adoption of the amendment. (16) Currently, there are legislative proposals to expand the sustainable communities' demonstration project to include a few rural communities.

Where the Department has determined that the amendment is in compliance, the petitioner must show that the amendment is not fairly debatable. This is a very difficult burden to carry. Essentially, a plan amendment is fairly debatable if people can disagree on whether it is in compliance. Where the Department has found the amendment not to be in compliance, the burden of proof is the preponderance of evidence standard, which is easier to meet than the fairly debatable standard. (17) Administrative Law Judges have found plan amendments not be fairly debatable where they were not supported by any data and analysis and where the Respondents experts were not sufficiently prepared to testify. Historic Gainesville, Inc., et al. v. Department of Community Affairs, et al., 95 ER FALR 123 (Final Order of Administration Commission December 6, 1995). See also, Recommended Order of Robert Meal in Environmental Confederation of Southwest Florida, Inc., et al, v. Department of Communi1y Affairs, et al., DOAH Case No. 97-4752GM.

Land Development Regulations:

The Growth Management Act requires that local governments implement comprehensive plans through the adoption or amendments of appropriate land development regulations (LDRs). Zoning and subdivision regulations are types of LDRs, however, environmental codes and other more innovative ordinances may also constitute LDRs. At a minimum the Act requires the adoption or amendment of regulations dealing with the subdivision of land, land uses, compatibility, well fields, flooding, drainage and stormwater management, environmentally sensitive lands, signage, and concurrency management of public facilities. (18)

Where a local government "totally fails" to adopt or amend one or more of the required types of land development regulations, the Department is empowered to seek judicial enforcement. While the Department has protested the failure of local governments to adopt regulations, it has never taken judicial enforcement action.

The Act sets forth procedures by which a substantially affected person may challenge an LDR as inconsistent with the adopted comprehensive plan. (19) Standing to initiate these types of proceedings was liberalized in the Act, which requires that the petitioner be a substantially affected person as provided by Section 120.57, Fla. Stat. (1996 Supp.). This means that the party must prove that they come within the zone of interest protected by the plan or LDR, which is a broader grant of standing than that required at the common law.

Procedure. A challenge to an LDR must be brought within I year of its adoption. To initiate a challenge, the citizen must file a petition with the local government setting forth why the LDR is inconsistent with the plan. The local government has 30 days to consider and respond to the petition, after which time the petition must be filed with the Department within 30 days. (20)

Upon receipt of a petition challenging an LDR, the Department will notify the local government of its receipt and then initiate an informal fact-gathering process to determine if the LDR is consistent with the plan. This may entail a meeting with the affected parties and the filing of memoranda. Within 60 days of receipt of the petition, the Department will issue a written decision on the issue.

If the Department finds that the LDR is inconsistent with the plan, it will initiate a formal administrative proceeding at DOAK in which proceeding the citizen and the local government are parties. On the other hand, if the Department determines that the LDR is consistent with the plan, it will issue such an order. After such time, the substantially affected person who filed the initial petition with the local government has 21 days to file a petition for formal administrative proceedings with DOAH. In both proceedings, the burden of proof is on the petitioner to prove that the LDR's consistency with the plan is not fairly debatable, and in both cases the hearing officer issues a final order. LDR challenges do not determine the validity of any development orders issued upon the ordinance, however, the Department's determination of consistency and certainly the final order issued by the hearing officer is of some evidentiary value. (21)

There have been several challenges brought to land development regulations. In virtually every case, the Department has determined that the LDR was inconsistent with the plan. Afterwards, the affected local government either repealed the LDR or proposed amendments which were consistent with the plan. See, Palmer Carr v. Wakulla Count , LC 96-01 (Determination of Inconsistency issued August 5, 1996), Department of Community Affairs, et al-v. Martin County , DOAH Case No. 96-413OGM, Johnson, et al-- v. Tarpon Springs- et al, 96 ER FALR 171 (Final Order of Administration Commission November 19, 1996).

A major flaw in the Growth Management Act is the failure to require any meaningful process to ensure that local governments adopt LDRs to implement their plans. No mandatory review by the Department of LDR adoption or amendment is required. The current system relies on the Department to investigate the current status of LDR adoption, which it has never done without a request to do so from a citizen. As a consequence, many local governments around the state have not properly implemented their plan with appropriate LDRs. Some have even failed to make their zoning code consistent with the plan. Given this fact, the successful realization of the plan's goals, objectives and policies are in doubt. Citizens are advised to seize upon this failure of state oversight, and lobby their elected officials to adopt regulations that implement the plans.

Development Orders:

The effective implementation of comprehensive plans is furthered through the requirement that all actions taken by local governments that effect the development of land must be consistent with the plan.' A development order is defined as an order issued by the local government which grants, denies or grants with conditions an application for a development permit.' Examples include site plan approvals, planned unit development approvals, special exceptions, rezonings, building permits, or variances. In practice, a development order is any action of local governments that have the effect of permitting the development of land, and can include preliminary or final approvals. While there is no case law on this point, it is this author's opinion that a development order includes a Development of Regional Impact Development Order. A recent final order of the Department has held that clearing land for agricultural activities is not development, nor subject to Chapter 163, Part II, Fla. Stat. (1996 Supp.). Environmental Confederation of Southwest Florida, Inc. and GgU Beardsla, v. Department of Communit Affairs, et al., DCA Case No. 97-266-FOF-GM (Final Order issued December 16, 1997).

Procedures. After a development order is issued, any aggrieved or adversely affected person may challenge the order as inconsistent with the plan. In order to establish standing under this provision, the person bringing the challenge must allege and prove that they will suffer an interest that is protected or furthered by the plan, which is different from that suffered by the public at large. An example is an adjacent property owner. The petition must be filed with the local government within 30 days of the issuance of the development order. It must be sworn to as true and accurate and be notarized. The local government has 30 days from the receipt of the petition to respond, after which time the petitioner has 30 days to file a complaint for declaratory and injunctive relief in the circuit court. (25) These time limits are jurisdictional and may not be extended by agreement of the parties. Bal Harbor Village v. Ci1y of North Mami Beach, 678 So.2d 356 (Fla. 3rd DCA 1996).

The recent case of Poulos, et al., v. Martin County et al. 700 So.2d 163 (Fla. 4th DCA 1997), held that citizens who challenged the issuance of a development order under this provision were not limited to the record prepared at the local government and were entitled to a trial de novo. If on the other hand, if the local government denies a permit, it is reviewed through a petition for certiorari on the record prepared at the local government. See, Parker v. Leon County, 627 So.2d 476 (Fla. 1993). Therefore, citizens would be well advised to fully present their case when the local government hears the development proposal.