All entries for May 2015

Time is of the Essence: Challenging Approved Development as Inconsistent with the Comprehensive Plan

may-15.jpgA towering monstrosity, a commercial complex, an industrial factory; the new construction just does not fit in with the rest of your quiet residential community.  In many instances these facilities may be challenged as inconsistent with the comprehensive plan for the local community.  Unfortunately for many, by the time they realize the new construction should be challenged as inconsistent with the comprehensive plan it is often too late.

Fla. Stat. § 163.3215 is “the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”  This section provides the mechanism for challenging the development order, but only provides thirty days from the approval of the development order to bring this challenge.1 In most cases, this means that by the time the inconsistent construction begins, the thirty day window to bring a challenge under Fla. Stat. § 163.3215 has closed.

Real estate and land use attorneys experienced in bringing these challenges, like those at Icard Merrill, are often able to circumvent the 30-day time limitation by challenging notice given by the local government concerning the approval of the development.  The seminal cases on the legally required notice to trigger the 30-day time limit under to Fla. Stat.  §163.3215 are commonly referred to as Das I and Das II.  In Das I, the Court was clear that “notice is required where a proposed project will affect the property of a party other than the one seeking the permit.”  Das v. Osceola Cnty., 685 So. 2d 990, 994 (Fla. 5th Dist. Ct. App. 1997).

While the Courts in Das I and Das II did provide some concrete examples of what would constitute sufficient notice, they did not provide a singular process for local governments to follow.  In other words, whether sufficient notice was given to trigger the 30-day time limit under to Fla. Stat. §163.3215 is often a very fact-specific grey area.  It is in navigating this grey area that an attorney experienced in bringing these challenges can make the difference between a dismissed challenge and achieving removal of the inconsistent construction.

Under any scenario, one of the keys to bringing challenges to construction that is inconsistent with the comprehensive plan is to act immediately.  Time is of the essence and challenges ultimately will be barred thirty days after the date proper notice was given.

Contact the offices of Icard Merrill in Sarasota, Bradenton and Punta Gorda as soon as possible if you would like to challenge an inconsistent development.

1  “Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. The de novo action must be filed no later than 30 days following rendition of a development order or other written decision, or when all local administrative appeals, if any, are exhausted, whichever occurs later.”  Fla. Stat. § 163.3215(3).