Senate Bill sb1906c1
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Florida Senate - 2002 CS for SB's 1906 & 550
By the Committee on Comprehensive Planning, Local and Military
Affairs; and Senators Peaden and Constantine
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1 A bill to be entitled
2 An act relating to local government development
3 orders; amending s. 163.3215, F.S.; revising
4 the methods for challenging the consistency of
5 a development order with a comprehensive plan;
6 redefining the term "aggrieved or adversely
7 affected party"; providing legislative intent
8 of the inapplicability of the act to a pending
9 case in litigation; providing an effective
10 date.
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12 Be It Enacted by the Legislature of the State of Florida:
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14 Section 1. Section 163.3215, Florida Statutes, is
15 amended to read:
16 163.3215 Standing to enforce local comprehensive plans
17 through development orders.--
18 (1) Subsections (3) and (4) provide the exclusive
19 methods for an aggrieved or adversely affected party to appeal
20 and challenge the consistency of a development order with a
21 comprehensive plan adopted under this part. The local
22 government that issues the development order is to be named as
23 a respondent in all proceedings under this section. Subsection
24 (3) shall not apply to development orders for which a local
25 government has established a process consistent with the
26 requirements of subsection (4). A local government may decide
27 which types of development orders will proceed under
28 subsection (4). Subsection (3) shall apply to all other
29 development orders that are not subject to subsection (4).
30 (2) As used in this section, the term "aggrieved or
31 adversely affected party" means any person or local government
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Florida Senate - 2002 CS for SB's 1906 & 550
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1 that will suffer an adverse effect to an interest protected or
2 furthered by the local government comprehensive plan,
3 including interests related to health and safety, police and
4 fire protection service systems, densities or intensities of
5 development, transportation facilities, health care
6 facilities, equipment or services, and environmental or
7 natural resources. The alleged adverse interest may be shared
8 in common with other members of the community at large but
9 must exceed in degree the general interest in community good
10 shared by all persons. The term includes the owner, developer,
11 or applicant for a development order.
12 (3)(1) Any aggrieved or adversely affected party may
13 maintain a de novo an action for declaratory, injunctive, or
14 other relief against any local government to challenge any
15 decision of such local government granting or denying an
16 application for, or to prevent such local government from
17 taking any action on, a development order, as defined in s.
18 163.3164, which materially alters the use or density or
19 intensity of use on a particular piece of property which that
20 is not consistent with the comprehensive plan adopted under
21 this part. The de novo action must be filed no later than 30
22 days following rendition of a development order or other
23 written decision, or when all local administrative appeals, if
24 any, are exhausted, whichever occurs later.
25 (2) "Aggrieved or adversely affected party" means any
26 person or local government which will suffer an adverse effect
27 to an interest protected or furthered by the local government
28 comprehensive plan, including interests related to health and
29 safety, police and fire protection service systems, densities
30 or intensities of development, transportation facilities,
31 health care facilities, equipment or services, or
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Florida Senate - 2002 CS for SB's 1906 & 550
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1 environmental or natural resources. The alleged adverse
2 interest may be shared in common with other members of the
3 community at large, but shall exceed in degree the general
4 interest in community good shared by all persons.
5 (3)(a) No suit may be maintained under this section
6 challenging the approval or denial of a zoning, rezoning,
7 planned unit development, variance, special exception,
8 conditional use, or other development order granted prior to
9 October 1, 1985, or applied for prior to July 1, 1985.
10 (b) Suit under this section shall be the sole action
11 available to challenge the consistency of a development order
12 with a comprehensive plan adopted under this part.
13 (4) If a local government elects to adopt or has
14 adopted an ordinance establishing, at a minimum, the
15 requirements listed in this subsection, the sole method by
16 which an aggrieved and adversely affected party may challenge
17 any decision of local government granting or denying an
18 application for a development order, as defined in s.
19 163.3164, which materially alters the use or density or
20 intensity of use on a particular piece of property, on the
21 basis that it is not consistent with the comprehensive plan
22 adopted under this part, is by an appeal filed by a petition
23 for writ of certiorari filed in circuit court no later than 30
24 days following rendition of a development order or other
25 written decision of the local government, or when all local
26 administrative appeals, if any, are exhausted, whichever
27 occurs later. An action for injunctive or other relief may be
28 joined with the petition for certiorari. Principles of
29 judicial or administrative res judicata and collateral
30 estoppel apply to these proceedings. Minimum components of the
31 local process are as follows:
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1 (a) The local process must make provision for notice
2 of an application for a development order that materially
3 alters the use or density or intensity of use on a particular
4 piece of property, including notice by publication or mailed
5 notice consistent with the provisions of s. 166.041(3)(c)2.b.
6 and c. and s. 125.66(4)(b)2. and 3., and must require
7 prominent posting at the job site. The notice must be given
8 within 10 days after the filing of an application for
9 development order; however, notice under this subsection is
10 not required for an application for a building permit or any
11 other official action of local government which does not
12 materially alter the use or density or intensity of use on a
13 particular piece of property. The notice must clearly
14 delineate that an aggrieved or adversely affected person has
15 the right to request a quasi-judicial hearing before the local
16 government for which the application is made, must explain the
17 conditions precedent to the appeal of any development order
18 ultimately rendered upon the application, and must specify the
19 location where written procedures can be obtained that
20 describe the process, including how to initiate the
21 quasi-judicial process, the timeframes for initiating the
22 process, and the location of the hearing. The process may
23 include an opportunity for an alternative dispute resolution.
24 (b) The local process must provide a clear point of
25 entry consisting of a written preliminary decision, at a time
26 and in a manner to be established in the local ordinance, with
27 the time to request a quasi-judicial hearing running from the
28 issuance of the written preliminary decision; the local
29 government, however, is not bound by the preliminary decision.
30 A party may request a hearing to challenge or support a
31 preliminary decision.
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1 (c) The local process must provide an opportunity for
2 participation in the process by an aggrieved or adversely
3 affected party, allowing a reasonable time for the party to
4 prepare and present a case for the quasi-judicial hearing.
5 (d) The local process must provide, at a minimum, an
6 opportunity for the disclosure of witnesses and exhibits prior
7 to hearing and an opportunity for the depositions of witnesses
8 to be taken.
9 (e) The local process may not require that a party be
10 represented by an attorney in order to participate in a
11 hearing.
12 (f) The local process must provide for a
13 quasi-judicial hearing before an impartial special master who
14 is an attorney who has at least 5 years' experience and who
15 shall, at the conclusion of the hearing, recommend written
16 findings of fact and conclusions of law. The special master
17 shall have the power to swear witnesses and take their
18 testimony under oath, to issue subpoenas and other orders
19 regarding the conduct of the proceedings, and to compel entry
20 upon the land. The standard of review applied by the special
21 master in determining whether a proposed development order is
22 consistent with the comprehensive plan shall be strict
23 scrutiny in accordance with Florida law.
24 (g) At the quasi-judicial hearing, all parties must
25 have the opportunity to respond, to present evidence and
26 argument on all issues involved which are related to the
27 development order, and to conduct cross-examination and submit
28 rebuttal evidence. Public testimony must be allowed.
29 (h) The local process must provide for a duly noticed
30 public hearing before the local government at which public
31 testimony is allowed. At the quasi-judicial hearing, the local
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1 government is bound by the special master's findings of fact
2 unless the findings of fact are not supported by competent
3 substantial evidence. The governing body may modify the
4 conclusions of law if it finds that the special master's
5 application or interpretation of law is erroneous. The
6 governing body may make reasonable legal interpretations of
7 its comprehensive plan and land development regulations
8 without regard to whether the special master's interpretation
9 is labeled as a finding of fact or a conclusion of law. The
10 local government's final decision must be reduced to writing,
11 including the findings of fact and conclusions of law, and is
12 not considered rendered or final until officially date-stamped
13 by the city or county clerk.
14 (i) An ex parte communication relating to the merits
15 of the matter under review may not be made to the special
16 master. An ex parte communication relating to the merits of
17 the matter under review may not be made to the governing body
18 after a time to be established by the local ordinance, which
19 time must be no later than receipt of the special master's
20 recommended order by the governing body.
21 (j) At the option of the local government, the process
22 may require actions to challenge the consistency of a
23 development order with land development regulations to be
24 brought in the same proceeding.
25 (4) As a condition precedent to the institution of an
26 action pursuant to this section, the complaining party shall
27 first file a verified complaint with the local government
28 whose actions are complained of setting forth the facts upon
29 which the complaint is based and the relief sought by the
30 complaining party. The verified complaint shall be filed no
31 later than 30 days after the alleged inconsistent action has
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1 been taken. The local government receiving the complaint
2 shall respond within 30 days after receipt of the complaint.
3 Thereafter, the complaining party may institute the action
4 authorized in this section. However, the action shall be
5 instituted no later than 30 days after the expiration of the
6 30-day period which the local government has to take
7 appropriate action. Failure to comply with this subsection
8 shall not bar an action for a temporary restraining order to
9 prevent immediate and irreparable harm from the actions
10 complained of.
11 (5) Venue in any cases brought under this section
12 shall lie in the county or counties where the actions or
13 inactions giving rise to the cause of action are alleged to
14 have occurred.
15 (6) The signature of an attorney or party constitutes
16 a certificate that he or she has read the pleading, motion, or
17 other paper and that, to the best of his or her knowledge,
18 information, and belief formed after reasonable inquiry, it is
19 not interposed for any improper purpose, such as to harass or
20 to cause unnecessary delay or for economic advantage,
21 competitive reasons or frivolous purposes or needless increase
22 in the cost of litigation. If a pleading, motion, or other
23 paper is signed in violation of these requirements, the court,
24 upon motion or its own initiative, shall impose upon the
25 person who signed it, a represented party, or both, an
26 appropriate sanction, which may include an order to pay to the
27 other party or parties the amount of reasonable expenses
28 incurred because of the filing of the pleading, motion, or
29 other paper, including a reasonable attorney's fee.
30 (7) In any proceeding action under subsection (3) or
31 subsection (4) this section, no settlement shall be entered
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Florida Senate - 2002 CS for SB's 1906 & 550
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1 into by the local government unless the terms of the
2 settlement have been the subject of a public hearing after
3 notice as required by this part.
4 (8) In any proceeding suit under subsection (3) or
5 subsection (4) this section, the Department of Legal Affairs
6 may intervene to represent the interests of the state.
7 (9) Neither subsection (3) nor subsection (4) relieves
8 the local government of its obligations to hold public
9 hearings as required by law.
10 Section 2. It is the intent of the Legislature that
11 this act shall not affect the outcome of Pinecrest Lakes, Inc.
12 v. Schidel, 795 So.2d 191 (Fla. 4th DCA 2001), rehearing
13 denied, 802 So.2d 486.
14 Section 3. This act shall take effect June 1, 2002.
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Florida Senate - 2002 CS for SB's 1906 & 550
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1906 and 550
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4 The CS includes technical and clarifying changes to SB 1906,
relating to the challenge of local government development
5 orders for inconsistency with the local government
comprehensive plan under s. 163.3215, F.S.:
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Clarifies that under subsection (3) of s. 163.3215,
7 F.S., as amended, when a local government has not
adopted a special master process, the appropriate cause
8 of action is a de novo action;
9 Grants by law affirmative authority to the special
master to issue subpoenas and compel entry to land;
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Provides that the local government must be one of the
11 respondents to a petition filed under s. 163.3215, F.S.;
12 Allows local governments the discretion to have an
alternative dispute resolution process instead of
13 mandating one;
14 Replaces the opportunity for "reasonable discovery,"
with the requirement that the local process include an
15 opportunity for the disclosure of witnesses and
exhibits, and an opportunity for the depositions of
16 witnesses; and
17 Provides that the local process may not require that a
third party be represented by an attorney.
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