A recent decision by the First District Court of Appeals provides at least a short-term win for lovers of fun and skydiving. In Nipper v. Walton Cnty., the owners of a large agricultural tract defeated the County's attempt to secure an injunction against them operating a skydiving business on the property. 42 Fla. L. Weekly D171 (Fla. 1st DCA January 17, 2017).
The Court determined that the Nippers, who won a code enforcement hearing against the County previously, could not be enjoined from enjoying their skydiving since the County could not prove a clear legal right to the injunction. The Court stated that the enforcement hearing provided that the County's position as given by the planning director was in conflict with the decision of enforcement and that enforcement's determination had been that the use of the property for jumping out of airplanes was not against code.
If you have questions about the manner you want to use your property or questions about your rights as a property owner, our stellar land use team is available to help today.
A homeowner was told by the Circuit Court for the Sixth Judicial Circuit (presiding over an appeal via writ of certiorari from a decision by the City of Treasure Island, Florida, Planning and Zoning Board) that his “hardship” resulting from the purchase of a property that would have allowed construction of only a one foot wide dock was the type of hardship brought on oneself and that the court would not grant a variance based on self-inflicted hardship. Schmidt v. City of Treasure Island, Fla., Planning and Zoning Board, 23 Fla. L. Weekly Supp. 507a.
Though the planning and zoning board had granted a variance allowing the homeowner to construct a wider—and, presumably, normally sized—dock, the Sixth Judicial Circuit reversed, finding that a neighbor had standing to challenge the award of the variance and that the homeowner had purchased property with knowledge at the time he closed on the property that only a limited swath of property was available to him for the construction of his dock. Therefore, the court reasoned, any hardship was brought on by the purchaser of the property and no variance was permitted without a showing that “extreme hardship” would result in an enforcement of the setback without the granted variance.
As the homeowner enjoys the water view from his extra-slim dock, he may wonder if talking to an experienced land use and zoning and planning attorney could have helped him avoid this situation. If you have questions about buying a property, obtaining a variance, or building a dock (of any size), talk to one of the decorated and recognized attorneys that practice land use and zoning and planning law in Sarasota, Manatee, and Charlotte Counties today.
A 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).
A recent rule passed in Palm Beach County demonstrates the interplay of politics and the law across the federal, state, and local levels.
On April 22, 2014, a local ordinance requiring gas stations to start posting maximum prices on their signs was passed in Palm Beach County. Its purpose is to try and curtail station owners from only posting their lower “cash-only” prices in order to lure consumers to their station. Gas stations have a year-long grace period to comply with the ordinance, after which they can be fined $250 for a first offense and $500 for repeat offenses.
The rule follows similar ordinances passed in both Broward and Miami-Dade counties.
The timing of the ordinance presents some insight into how local and state government interacts. The vote on the rule proposal was originally set for March 22, 2014, however, the commission delayed the vote until July 22, 2014 upon the request of the Florida Petroleum Marketers and Convenience Store Association. Part of the Association’s request stemmed from its belief that there were pending proposals on the federal level that would accomplish the same goals as the ordinance.
Under the Supremacy Clause, a law passed by the federal government on a given subject-matter is controlling upon both state and local governments. County officials reportedly could not find any federal measures specifically directed towards truth in advertising for gas prices.
On April 15, 2014, the commission decided to move the vote to the next Tuesday, April 22nd.The commission wanted to vote on the rule as soon as possible due to fears of preemption by the state government. Preemption occurs when the state government passes a law on a subject matter; from that point onwards, local governments cannot pass a law on the same subject matter because the state government has already dictated how the subject matter will be legislated.
Members of the commission specifically mentioned House Bill 947 and its counterpart Senate Bill 1070 as possible legislation that would prevent counties from imposing rules on gas station advertising. The proposed legislation could be deemed broad enough to prevent local governments from passing rules related to gas station advertising.
Opponents of the rule felt that a statewide solution was more efficient than a county-by-county approach. The commission disagreed, specifically stating that if the state decided to pass a law that effectively trumps the county’s ordinance, the county can always repeal the rule.
Furthermore, the commission felt that the unknown qualities of the proposed state legislation could work to the county’s advantage, as local rules are sometimes “grandfathered in” and remain unaffected by new state legislation.
The Palm Beach County Commission ordinance illustrates the importance of timing when passing local laws: pass an ordinance too soon, and the rule may be trumped by superior legislation, forcing a repeal of the rule. Pass too late, and the state or federal government can preempt the subject matter and deprive local government of the ability to speak on the issue as it relates to a specific county.
Land use ordinances, regulations, and administrative law can sometimes change quickly and can often have a substantial impact on businesses and individuals.
The attorneys of Icard, Merrill, Cullis, Timm, Furen, & Ginsburg closely monitor—and, in some cases are involved in – the process of creating new local city and county ordinances. Attorneys also closely monitor state laws affecting land use in Sarasota, Manatee, and Charlotte counties and surrounding areas so that they can advise clients of these changes and how it might affect them.