The Phoenix Flyer

Last-minute legislative amendment penalizes anyone who challenges Florida development

By: - May 7, 2019 1:20 pm

Developers may be responsible for Florida’s high number of lead water feeds. Shown is Bonita Springs. Google Earth

A longtime watchdog group is warning that legislation soon heading to Gov. Ron DeSantis’ desk would gut enforcement of Florida’s 1985 Growth Management Act, a landmark law intended to make sure local governments properly plan for development’s impacts.

HB 7103, approved in the closing days of the 2019 legislative session, would ban local governments from requiring developers to include affordable housing within their projects. What most worries 1000 Friends of Florida is an amendment that says anyone who sues to enforce local comprehensive development plans and loses in court has to then cover the winners’ legal fees.

“It will end citizen-initiated and landowner-initiated [planning] challenges in the state of Florida. And if we don’t have that challenge, comprehensive plans will not be enforceable. We’ll be back to where we were before 1985,” said Thomas Hawkins, the organization’s planning and policy director.

His group, and others, very much would like DeSantis to veto the bill, and is working with other groups to send a letter urging a veto.

Hawkins worries that legislators didn’t appreciate what they were doing.

This language showed up at the very last minute. The Senate voted on it just hours after it was proposed. It was never heard in committee. It was never subjected to a staff analysis. It was not discussed on the floor at all. This language had not been vetted by anyone.”

The Legislature passed the Growth Management Act to put teeth into local governments’ development regulations. Cities and counties, Hawkins said, were putting their comprehensive plans “on the shelf.”

“They weren’t making actual permitting decisions consistent with their plans,” Hawkins said. “There was broad agreement that was a problem.”

The law provided for “consistency challenges” – giving private citizens standing to sue when local governments approve  building permits, rezonings, or massive developments that are inconsistent with the local  comprehensive plan. “That’s the only enforcement mechanism,” Hawkins said.

Since lobbyists for developers got the Legislature to abolish Florida’s Department of Community Affairs land-planning agency years ago,  no state agency enforces the local plans.

The new measure would steer comprehensive plan challenges to summary hearings – a fast-track legal proceeding more typically used to resolve landlord-tenant disputes, Hawkins said. Parties, however, would be allowed to opt out of summary proceedings if they can show “clear and convincing evidence” that it would be inappropriate to handle the dispute in a summary hearing.

The measure  says that prevailing parties in these actions would be  “entitled to recover reasonable attorney fees and costs incurred in challenging or defending the order, including reasonable appellate attorney fees and costs.”

“If you’re a landowner who’s trying to enforce your property rights by trying to have the local government follow the comprehensive plan – if you’re a community organization or environmental organization trying to enforce the plan – you have to weigh the risk that, if you lose, you’ll have to pay the city’s attorney fees,” Hawkins said.

“That’s a very lopsided equation. If you’re just paying your own attorney fees, you can design the litigation to be as affordable as possible – you’re going to shop around for attorneys; you’re going to work it to make is affordable,” he said.

“Cities don’t do that. They have in-house attorneys who have the ability to spend as much time as possible on these things.”

Similar language by Sen. Jeff Brandes, a Republican from Pinellas County, had surfaced in a committee hearing a week before the floor vote, Hawkins said, but Brandes withdrew it after 1000 Friends raised an alarm – only to present it on the Senate floor on May 1, mere days before the session ended.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.