The Pinecrest Decision

Citizen Enforcement of Comprehensive Plans Upheld, Foresight, Winter 2001
By Terrell Arline, Legal Director

As a result of the determination of one ordinary citizen, Karen Shidel, courts have issued a landmark ruling in support of growth management that has statewide ramifications. The Fourth District Court of Appeal has upheld the right of citizens to require local governments to follow their comprehensive plans. The court found an apartment complex in Martin County to be inconsistent with the local comprehensive plan. Saying that the developer had acted "in bad faith" and constructed the project while the lawsuit was pending, the court required the developer to tear down the illegal buildings, at a cost of more than $3 million.

"You do the right things for the right reasons in life," Ms. Shidel told a reporter for the St. Petersburg Times. "There are very few things you fight for. The things you do fight for are your home, your family, your friends. This is one of those things."

Shidel, a secretary, and her husband, Paul, bought a one-acre lot in Pinecrest Lakes in 1986. They built their home, raised two sons, and looked forward to their retirement years in this quiet, middle-class neighborhood in Jensen Beach. In 1995, the developer of Pinecrest Lakes sought to change the site plan for a 21-acre strip of land abutting the Shidel's property, from 29 single family homes to 136 rental units in 19 two-story, multifamily buildings. After numerous, often contentious public hearings, Martin County authorized the site plan change.

Maintaining that the revised site plan was not consistent with the Martin County Comprehensive Plan, Ms. Shidel brought suit against the county. The developer then joined the challenge on the side of the county. While the case was pending, the developer proceeded with construction of the most controversial portion of the development—a luxury apartment complex, building directly behind the Shidels' home.

The Circuit Court had ruled in Ms. Shidel's favor in 1999, finding the buildings inconsistent with Martin County's plan and calling for the controversial structures to be demolished. In September of this year, the appellate court agreed with both findings. While this court opinion has drawn fire from industry groups and some local government officials, it simply applies laws that have been on the books since 1975.

For more than 25 years, Florida law has required local governments to act "consistent with" the adopted comprehensive plan when approving development. There are no exceptions. And in this particular case, the Martin County Comprehensive Plan was unambiguous: it created a type of transition area where new structures have to be compatible with existing single family development and established policies requiring a tiering of densities. For years citizens have been able to enforce the consistency mandate in court, precisely what Ms. Shidel sought to do.

In upholding Shidel's position, the appellate court noted that the Supreme Court of Florida had asserted in 1993 that local land use decisions were subject to "strict scrutiny" by the courts in order to ensure that development would be consistent with the comprehensive plan. The court said Florida law was "a command to cities and counties that they must comply with their own Comprehensive Plans."

Citing court cases as far back as 1987, the appellate court observed that state law demonstrates "a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action." By specifically rejecting the developer's focus on the high cost of demolition, the court correctly concluded that it would render the consistency mandate "meaningless and ineffectual" if developers could "build in defiance of the limits and then escape compliance by making the cost of correction too high."

While the Pinecrest case is clearly based on established precedent and existing law, some are wrongly touting the case as judicial activism. Certainly the case will be appealed to the Supreme Court of Florida. It is also expected that the Legislature will be asked by industry and local government interests to reverse the decision.

Because of the statewide ramifications of this case, 1000 Friends of Florida filed an amicus brief in support of Ms. Shidel and stands ready to do the same when the case reaches the Florida Supreme Court. 1000 Friends remains committed to fight any limit on a citizen's ability to enforce the local comprehensive plan. In this day when many are pushing in favor of delegating planning decision-making to the local level, the ability of citizens to compel their local governments to follow the comprehensive plan must remain strong and effective.

Hindsight: A Land Use Board of Appeals for Florida? Foresight, Winter 2001
Nancy E. Stroud, a shareholder with Weiss Serota Helfman Pastoriza & Guedes, specializes in land use issues and chairs 1000 Friends' Legal Advocacy Committee.

The Pinecrest case, although unusual in its facts, does not stray very far from the analysis that the Florida Supreme Court has required of the review of a development order for consistency with the comprehensive plan. And, all too typically, the decision took years to reach while the controversy wound its way through the court system. In the end, Pinecrest Lakes Inc.'s risky decision to go forward with building the apartments during the extensive court proceedings has had serious financial consequences to the developer.

But the toll on citizen groups and other parties in light of the uncertainties during such court proceedings is also high. Many persons and groups simply do not have the financial resources or staying power to endure the effort and time involved in litigation and appeal proceedings. No doubt there will be some who use Pinecrest to argue that the role of citizens and the remedies available under the current law should be changed and limited. I think it may be time to provide changes in the law that benefit all parties by establishing a Florida Land Use Board of Appeals.

A number of states have established specialized courts to hear appeals from local land use decisions. Perhaps most notable is the Oregon Land Use Board of Appeals, or "LUBA," established in 1979, six years after adoption of that state's landmark planning law that was in many ways the progenitor of the Florida growth management legislation.

LUBA hears all appeals of land use decisions made by cities, counties and special districts. Where the local decision is quasi-judicial, LUBA reviews the decision based on the evidence presented in the local government hearings, much like the circuit court in Florida reviews quasi-judicial matters on petition for writ of certiorari. LUBA also reviews local "legislative" decisions, in a manner similar to the "de novo" review authority of the Florida circuit courts.

LUBA was created to reduce the procedural complexity that had evolved within the Oregon land use system, where different types of land use challenges were split between multiple forums, including trial courts and administrative agencies. Significantly, LUBA also was created with the express legislative policy statement that "time is of the essence in reaching final decisions in matters involving land use and that those decisions be made consistently with sound principles governing judicial review."

According to 1000 Friends of Oregon, LUBA has been very successful in doing both. Its decisions have been made in almost half the time as those which were made by the circuit courts when they had jurisdiction. LUBA's review process is subject to strict deadlines, and the legislature has also imposed a deadline on the Court of Appeals for making decisions on appeal from LUBA. The filing fee and deposit for costs at LUBA total $200. Attorneys fees and time-related costs are controlled by the expedited review schedule.

In Oregon, many citizens have been able to represent themselves effectively before LUBA, without hiring a lawyer. The quality of the LUBA decisions may be interpreted in part by the success rate on appeal to the Court of Appeal; 70 to 74 percent of LUBA decisions have been upheld by the appellate court, nearly twice the affirmance rate of the circuit courts land use decisions before LUBA was created.

What would a Florida LUBA look like? It could be similar to Oregon's. The Land Use Board of Appeals is a panel of three attorneys ("referees") appointed by the Governor and confirmed by the Senate. Attorneys appointed to LUBA have had experience representing local governments, developers and citizen groups. Or it could be a specialized department within Florida's Division of Administrative Hearings, which for more than fifteen years has had responsibility to review comprehensive plan challenges and challenges to certain local government land use decisions in areas of critical state concern. In Oregon, LUBA has statewide jurisdiction. Given Florida's population, the LUBA here might be organized into regional bodies, as the caseload may require.

The Florida Supreme Court has recently expressed concern in two different cases about the disparate ways in which the state circuit courts review local government quasi-judicial decisions. It is time to seriously consider whether a Land Use Board of Appeals could increase procedural uniformity, the timeliness of decisions, the quality of review and the accountability of the process.

From The Director: Ramifications of Pinecrest, Foresight, Winter 2001

As we go to press, the Legislature's special session to deal with the state's budgetary crisis has ended, with another on the same topic likely before year's end. For now, the two biggest funding programs we follow—Forever Florida land acquisitions and the Sadowski Act affordable housing funding—are intact. Vigilance, and a loud voice if things change, will be key.

Currently brewing in the background could be an unfortunate reaction to the recent Pinecrest Lakes decision. There is a movement afoot to reverse, if not this decision, then the principle of citizen enforcement of local comprehensive plans. The fine affirmation rendered by the Fourth District Court of Appeal regarding citizen rights and enforcement of local comprehensive plan policies is testament to the sound and fundamental concept of public involvement in planning. Many still do not understand that most often it is an individual citizen that sees to it that local government planning policies are carried out.

Contrary to what those opposed to it say, this decision does not violate local government authority to interpret the policies of the local comprehensive plan. The court carefully examined and attempted to defer to Martin County's interpretation. However, as the court points out, no local government has the discretion to not apply its comprehensive plan policies. In this particular case, the court found that the placement of the multifamily apartments was clearly inconsistent with the Martin County plan. So now that a citizen has "won," those opposed argue it is necessary to restore deference to local decisions of this type, regardless of the outcome. Nothing could do more damage to our current system of growth management.

Along with other groups, 1000 Friends has voiced concern about reducing state oversight of local comprehensive plans and plan amendments. We have also agreed that eliminating the review of routine changes would be appropriate, as long as all affected parties agree on the identification of those "routine" changes. Still, citizen enforcement of these plans is crucial to an effective growth management system. There is no reason to alter these existing statutory provisions unless the real motivation is to destroy growth management once and for all. Perhaps this is the time to revive the discussion about replacing court proceedings with a land use board of appeals, as in Oregon. While there is always room to refine the citizen participation process, compromising the principle on which this rests would be unconscionable.