Florida’s Sector Planning Process

By Jennifer B. Springfield

In 1998 due to the mounting realization that a twenty-year planning period was too short and the existing planning tools were too constraining, in a fast growing state, to adequately protect natural systems and avoid piece-meal planning, the Florida Legislature created section 163.3245, Florida Statutes (FS), which established an experimental pilot program titled Optional sector plans, that lasted for thirteen years. (fn 1 & 2) It had become evident that a more “flexible, but principled” approach to land planning was needed in order to achieve the state’s conservation goals and develop livable communities utilizing large tracts of undeveloped land predominantly still under single ownership. In 2011, after several studies appraising the results of the pilot program, the Legislature amended section 163.3245, FS, establishing sector plans as a new tool for “long-term planning for conservation, development, and agriculture on a landscape scale.” (fn 3)
In doing so, the Legislature expressed its intent that sector planning promote “Innovation,” “facilitate protection of regionally significant resources,” and be “aspirational.” (fn 4) In an article that appeared in the June 2014 Florida Bar Journal, the authors stated:
The best sector plans incorporate long-term commitments for preservation of environmental resources and agricultural lands as well as policy commitments that emphasize strong urban form to create livable communities and a balanced transportation network. In essence, sector plans provide an opportunity to plan in a manner that avoids the sprawling development patterns employed in Florida during the last fifty years. They also have an economic driver that is important to the larger community, and they are products of community-based negotiation by public and private partners in open and collaborative processes. (fn 5)

The statute establishes two separate planning phases – long-term master planning that changes the existing land use designations in the local comprehensive plan for the entire area, and subsequent detailed specific area planning for sub-areas of at least 1000 acres that provide a detailed plan of development consistent with the long-term master plan. While there are content requirements for these plans, there are no statutory criteria to guide the local government in deciding whether to approve or deny a proposed sector plan. Consistency with the existing comprehensive is not required and the applicant is “not required to demonstrate need based upon projected population growth or on any other basis.” (fn 6) The requirements for the initial long-term master planning portion are designed to provide a broad framework and general direction for the conservation, development, and agricultural activities envisioned. The items that must be generally identified in the long-tern master plan include:
• A map generally depicting the urban, agricultural, and conservation areas with densities and intensities and emphasizing sound urban form as the basis for development;
• Water supplies needed and available sources, including water resource and supply development projects and water conservation measures;
• Transportation facilities needed with an emphasis on multi-modal systems to optimize mobility;
• Regionally significant public facilities needed to support the land uses and procedures to mitigate impacts on public facilities;
• Regionally significant natural resources and procedures for their protection and conservation; and
• Procedures and policies to facilitate intergovernmental coordination to address extra-jurisdictional impacts. (fn 7)

The long-term master plan is subject to review by the Department of Economic Opportunity (DEO), the state land-planning agency, as to whether it complies with the statutory requirements and whether it “will adversely impact important state resources and facilities:” DEO may initiate a formal administrative hearing process regarding these issues, as well as can a third party.
The statute also attempts to link land, water and transportation planning, which was missing in the past and created many difficult development issues amongst the state, regional and local governments. For instance, the water needs, sources and water resource and supply development projects identified in the long-term master plan must be incorporated into the applicable water management district’s water supply plans, and any MPO long-range transportation plan must be consistent with the long-term master plan to the maximum extent feasible.
Once a long-term master plan is approved and in place, local government approval of two or more detailed specific area plans (DSAP) may be sought as local development orders, which are not subject to state review, but must be consistent with the long-term master plan. At this stage, the statute requires detailed and specific identification and analysis of the following items within the specific area plan boundaries:
• Maximum and minimum densities and intensities of use and distribution, extent and location of future land uses emphasizing compact urban development;
• Water resource development and water supply development projects and related infrastructure and water conservation measures to address water needs;
• Transportation facilities to serve future land uses promoting multiple modes of transportation;
• Other regionally significant public facilities, including those outside the host government, and impacts of future land uses and required improvements;
• Major public facilities needed to serve development, including developer contributions, in the local government’s five-year capital improvements schedule;
• Measures to ensure the protection and restoration and management of lands identified for permanent preservation through recording conservation easements, to ensure that off-site environmental impacts are avoided or minimized and mitigated; and
• Procedures to facilitate intergovernmental coordination to address extra-jurisdictional impacts. (fn 8)

DEO may appeal a local government’s approval of a DSAP to the Land and Water Adjudicatory Commission on the grounds that it is not consistent with the comprehensive plan or the long-term master plan. An aggrieved or adversely affected party may also challenge the development order in court pursuant to § 163.3215, FS.
Local governments are primarily responsible for enforcing DSAP’s, but the DEO may initiate administrative or judicial action pursuant to §380.11, FS, if it believes that a violation has occurred or is about to occur. (fn 9)

Footnotes
1. An application for approval of the long-term master plan for Plum Creek’s Envision Alachua Sector Plan is currently being considered by Alachua County.
2. Ch. 98-176, § 15 at 20, Laws of Florida.
3. § 163.3245(1), Fla. Stat. (2015)
4. § 163.3245(1), Fla. Stat. (2015)
5. Sector Plans, Powell, David L., Gary K. Hunter, Jr. and Robert M. Rhodes, The Florida Bar 2014
6. § 163.3245(3)(a) and (b), Fla. Stat. (2015)
7. § 163.3245(3)(a), Fla. Stat. (2015)
8. § 163.3245(3)(b), Fla. Stat. (2015)
9. § 163.3245(5), Fla. Stat. (2015)

RIPARIAN WATER RIGHTS

You’ve probably heard the term and know that it relates to water, but what precisely are “riparian rights,” who has these rights, and what is the nature of these rights? Riparian rights are those rights which are incident to lands that border upon “navigable waters.” Riparian rights include such things as the right to ingress and egress the waters, and to boat, bathe and fish in the waters. Riparian rights are not proprietary in nature; they inure to the benefit of the upland owner, but they are not owned.
Navigable waters consist of freshwater lakes, rivers and streams, surveyed and owned by the State of Florida. They typically do not include non-meandered lakes, ponds, swamps or overflowed lands – the land under which has been conveyed to a private person without a reservation of any public rights. The State also owns the submerged lands under its navigable waters, as well as any islands, sandbars, and shallow banks within them. Although the State owns these lands and waters, they are considered to be held in trust for all of its citizens under what is known as the Public Trust Doctrine.
Under the Public Trust Doctrine, the State also owns coastal waters and lands within the Atlantic Ocean and the Gulf of Mexico. The State is said to own everything below the mean high water line and the upland landowner bordering the coastal waters owns everything above the mean high water line. Coastal upland owners have what is referred to as “littoral rights.” Littoral rights are very similar to riparian rights. Littoral rights include navigation, bathing and fishing, and also the rights of access to the water, reasonable use of the water, and an unobstructed view of the water. Further, coastal upland owners are subject to the natural forces of accretion and reliction, under the principles of which an upland owner and/or the State may gain and/or lose land area over time depending upon whether sand is deposited on the coast or eroded from the coastline. And you thought riparian rights had something to do with reptiles?

HYDRAULIC FRACTURING: LAWS AND LEGAL MANEUVERS

By Jennifer B. Springfield

What is hydraulic fracturing, aka fracking, or high-pressure well stimulation? A simple definition is the extraction of natural gas and oil deposits (difficult to access because they are trapped within tight pores of rocks deep underground) by injecting water, sand and chemicals into drilled holes or wells which serves to fracture the rock and allow these resources to be recovered. A more technical definition is all stages of a well intervention performed by injecting more than 100,000 gallons total of fluid into a rock formation at high pressure that exceeds the fracture gradient of the rock formation in order to propagate fractures in such formation to increase production at an oil or gas well by improving the flow of hydrocarbons from the formation into the wellbore.(1) The rock/resources from which oil and natural gas are recovered using fracking technology are referred to as coalbed methane, shale gas and oil, and tight sandstones or tight gas and oil.
Why is this technology controversial in the U.S.? In the U.S., the use of hydraulic fracturing contributes to energy independence and provides many jobs. It also poses a number of environmental risks, such contamination of ground and surface water from leaking wells or surface spills, air pollution from the escape of methane gas, use of limited water supplies, and increased seismic activity (rare).
Is hydraulic fracturing being used in Florida to recover oil and gas? Historically, it has rarely been used, but there exists within the industry an interest in exploring the greater use of hydraulic fracturing in two areas of the state where oil and gas deposits have already been removed using conventional methods. One is an area located in the western panhandle known as the Jay Trend and the other is an area in southwest Florida known as the Sunniland Trend, where standard production peaked in the 1970’s.(2)
How are state and local governments in the U.S. addressing the use of high-pressure well stimulation to extract oil and gas resources from the ground? At least one state, New York, has banned hydraulic fracturing.(3) In other places where its use is fairly widespread, both state and local government regulations are common, but there are several states that have preempted its regulation to their executive branch.(4) Under current law in Florida,(5) an “operator” using hydraulic fracturing must notify the Department of Environmental Protection (FDEP) before beginning any “workover” on an oil or gas well, but no permit and, therefore, no inspection is required. Several local governments have also gone on record as being opposed to hydraulic fracturing (6) but none have attempted to regulate the activity.
Several bills were filed during the 2015 Legislative Session to either ban (7) hydraulic fracturing or regulate it.(8) The House and Senate bills proposing to ban hydraulic fracturing were each filed, referred to a committee and introduced in committee, but no action was taken. The House bill proposing greater regulation of hydraulic fracturing, which also contained a local government preemption clause, became engrossed and was headed to a final vote by the full chamber. The Senate, which substituted the House’s third committee substitute for its version, was read a second time and debated on the Senate floor. If passed, the changes made to existing law would have included the following (9):
• A permit from FDEP would be required prior to performing high-pressure well stimulation to increase production at an oil or gas well.
• Past violations could be considered by FDEP and used as a basis for denial of the application or the imposition of additional, special conditions.
• Inspections by FDEP would be required.
• The national chemical registry known as FracFocus would be designated as the state’s registry for recording and tracking chemicals used.
• Permit holders would be required to report the chemicals used.
• FDEP would be required to conduct a study on the potential effects of hydraulic fracturing.
• Local governments would be prohibited from adopting or establishing programs to issue permits for any activity related to oil and gas drilling, exploration or production.
Hydraulic fracturing will continue to be controversial in Florida and elected officials will be required to address its use or nonuse in the near time. Those persons living nearby these sites who fear the effects are likely to continue to demand that regulators and well operators comply with any applicable laws in effect.
Footnotes
1.CS/CS/CS/HB 1205, Engrossed 1, Florida House of Representatives 2015 Legislative Session.
2.Industry Perspectives on Laws and Regulations Governing Oil and Natural Gas Production in Florida, Timothy Riley, UF PIEC , February 13, 2015.
3.Role of State and Local Regulation: Local Government/Environmental Perspective, Ralf Brooks, UF PIEC, February 13, 2015.
4.An Introduction to Unconventional Oil and Gas Technologies, Risks and Regulations, Hannah Wiseman, UF PIEC, February 13, 2015
5.Chapter 377, Part I, Florida Statutes and rule chapters 62C-25 through 62C-30, Florida Administrative Code.
6.These include Alachua County, Miami-Dade County, Hallandale Beach, Coconut Creek, and the Leon Soil and Water Conservation District.
7.Senate Bill 166 and House Bill 169.
8.Senate Bill 1468 and House Bill 1205.
9.House of Representatives Staff Analysis dated April 15, 2015.

Florida Eminent Domain Law: Condemnation Procedure

FLORIDA EMINENT DOMAIN LAW
Condemnation Procedure
By Jennifer B. Springfield and Alexander Boswell-Ebersole

​The government exercises its eminent domain authority by civil action, and the procedure for the exercise of this authority is generally called either a taking or a condemnation action. In addition to the substantive law of eminent domain in Florida, Chapters 73 and 74, Florida Statutes, contain several requirements concerning the procedural aspects of condemnation actions. Although the procedures governing all other civil actions still apply to condemnation actions where Chapters 73 or 74 do not prescribe a particular procedure, many of the Chapter 73 and 74 procedural requirements are significant and designed to protect property owners. Consistent with the others in this series, this article only discusses the intentional voluntary use of eminent domain, and not regulatory takings or ”inverse condemnation.”
​A proceeding initiated under Chapter 73 is often called a “slow take” action and a proceeding under Chapter 74 is often called a “quick take” action. In Chapter 73 proceedings, title of the property does not pass to the condemning authority until after a final judgment assessing the compensation due. Most eminent domain actions are filed as “quick take” actions, which are supplemental to Chapter 73 and allow the condemning authority to deposit security funds into the court registry in order to take possession and title of the property prior to final judgment. However, unless specifically afforded the ability to do so in one of the several other statutes providing eminent domain authority to particular entities, only those entities listed in 74.011, Florida Statutes, may use the quick take action. A disadvantage of this quick take procedure is that once the petition is filed, the funds are deposited by the condemning authority into the court registry and are available to the landowner, the court issues an order of taking and the condemnor may not abandon the project unless the landowner/defendant agrees. On the other hand, compensation is not due until after the final judgment in a slow take proceeding, and thus the condemnor is free to abandon or change the project if it receives an unfavorable judgment.
​Owners of property sought for condemnation generally hear from the condemning authority well before the actual initiation of a condemnation proceeding. In fact, before a condemning authority officially files a petition for condemnation, Chapter 73 requires that the condemning authority provide notice of a variety of statutorily required matters (e.g., that the property is necessary for a public project), and also requires the condemnor to both engage in good faith negotiations with the landowner and provide a written offer. Moreover, if the landowner requests, the condemning authority must furnish a copy of the appraisal upon which the offer is based. After receipt of the notice, the landowner has 30 days to respond before the condemning authority may initiate a condemnation proceeding. Where the landowner is a business owner, however, the condemning authority need only make a good faith effort to notify, and is not required to wait 30 days or to engage in good faith negotiations.
​In filing a petition for a condemnation proceeding, the condemnor must file in the circuit court of the county where the property is located. The contents of the petition must include all the information required in 73.021, Florida Statutes, as well as a proper resolution issued by the condemning authority that authorizes the condemnation. Once the petition is filed, there are essentially two phases of a condemnation proceeding. First, the court must assess the validity of the taking (i.e. whether the condemnor has the right and whether the nature and scope of the taking is appropriate). The court makes this determination in a hearing in limine or, in the case of a quick take action, at the request of a defendant pursuant to 74.051(1), Florida Statutes. As for the second part of a condemnation proceeding, a jury determines the amount of compensation due. Thus, the court plays a rather limited role in condemnation proceedings.

THE ENVIRONMENTAL PROTECTION ACT:”Citizen Suits” for the Environment

THE ENVIRONMENTAL PROTECTION ACT:
“Citizen Suits” for the Environment

By Jennifer B. Springfield and Alexander Boswell-Ebersole

​In 1971, the Florida Legislature passed the Florida Environmental Protection Act. This Act, codified as section 403.412, Florida Statutes, authorizes Florida citizens, subdivisions and municipalities of the state, as well as the Department of Legal Affairs, as well as private citizens who meet the standing requirements under the Act, to bring suit in the name of environmental protection. More particularly, section 403.412 allows these entities to initiate actions for injunctive relief in order to either compel enforcement by an agency charged with enforcing laws, rules, or regulations that protect the “air, water, and other natural resources of Florida,” or to prohibit any person, corporation, or government agency or authority from violating such laws, rules, or regulations.
Moreover, in addition to providing the authority to initiate judicial proceedings, the legislation enables these same entities to intervene in ongoing administrative hearings under sections 120.569 or 120.70, Florida Statutes, where the hearings are related to the protection of the “air, water, and other natural resources of the state.”
Finally, the Act also expressly gives not-for-profit corporations organized for the purpose of protecting the environment or natural resources the authority to initiate section 120.569 or 120.70 administrative hearings. The only restrictions are that: 1) the not-for-profit must consist of at least 25 current members who reside in the county where the activity is proposed, and 2) the not-for-profit must have been formed at least one year before the government agency’s initiation of the activity.
​Adopted at the height of the environmental movement, the Florida Environmental Protection Act makes up part of the legislative response to Article II, Section 7 of the Florida Constitution, which was added to the state constitution in the late 1960’s. In addition to aspirational language regarding protection and conservation of the state’s natural resources and scenic beauty, Article II, Section 7 requires the Florida Legislature to make “[a]dequate provision . . . by law” to carry out these goals. As a result, the Legislature responded by adopting a variety of laws pertaining to the environment, including the Florida Environmental Protection Act.
​Since the Act gives private citizens standing to bring suit to enforce the law, actions brought under it are often referred to as “citizen suits.” Some champion the benefits of the expanded role of citizens in environmental governance that citizen suit provisions can offer. Several states have statutes authorizing citizen suits and virtually all major federal environmental statutes contain citizen suit provisions.
​Florida’s citizen suit provision prescribes its use for judicial proceedings in a variety of different ways. For example, it requires, as a condition precedent to instituting a suit, the petitioner to file a “verified complaint” with the agency question in order to give that agency 30 days to attempt to remedy the matter. Section 403.412 also provides for costs and attorney’s fees to be paid to the prevailing party, and restricts venue to the county or counties where the alleged transgression occurs.
Like other types of petitioners, citizens bringing suit under 403.412 must be appropriately situated so as to properly claim standing. That said, among the states with citizen suit provisions, Florida’s standing requirement is relatively lenient because Florida’s 403.412 citizen suit provision does not require a party to prove a special injury, which is typically required to show standing in other lawsuits. In other words, standing under section 403.412 does not require the party to incur an injury “different both in kind and degree” from injury suffered by the general public. This less restrictive standing requirement could be an important consideration when, for example, an activity requires both a state and federal permit, thus giving a challenger the option to challenge in either state or federal court. Yet, despite its lenient standing requirement, very few citizen suits have actually been brought under the Florida Environmental Protection Act.

Florida Eminent Domain Law: “Public Purpose” and “Just Compensation” Requirements

FLORIDA EMINENT DOMAIN LAW
“Public Purpose” and “Just Compensation” Requirements
By Jennifer B. Springfield and Alexander Boswell-Ebersole

​In Florida, governmental entities may take privately-owned real property for a “public purpose,” provided the owner receives “full compensation.” Under the Florida Constitution, the public purpose and full compensation requirements generally result in greater protection for private landowners than under federal law, and the precise meanings of these two terms have been fleshed out by the State Legislature and Florida courts. While this article’s focus is on intentional eminent domain situations, many of the same principles apply to inverse condemnation proceedings.
​What is a public purpose/use? Under the U.S. Constitution and federal law, “public use” has been interpreted broadly to include projects ranging from the more traditional eminent domain purposes, such as transportation or military defense, to projects that provide a “public benefit” or fulfill an “economic development” purpose, such as clearing an area of blight or slum. Florida courts often use the two terms interchangeably and also interpreted public purpose/use rather broadly until a 2005 U.S. Supreme Court case prompted new legislation and an amendment to the Florida Constitution.
​Determining whether a particular use amounts a public use or is for a public purpose is typically a legal question to be determined by the court on a case-by-case basis. Public use has been defined by the Florida Supreme Court as follows:
A use to be public must be fixed and definite. It must be one in which the public, as such, has an interest, and the terms and manner of its enjoyment must be within the control of the State, independent of the rights of the private owner of the property appropriated to the use. The use of property cannot be said to be public if it can be gainsaid, denied, or withdrawn by the owner. The public interest must dominate the private gain.

In accordance with this, condemned property must be available to the public, though not all members of the public must directly enjoy the benefits of it. Moreover, property taken by eminent domain may result in private gain, so long as the taking is clearly and predominantly for a public purpose and the private gain is merely incidental. In practice, this principle has often proven difficult to apply.
​Florida’s eminent domain law changed significantly in response to a 2005 U.S. Supreme Court case, Kelo v. City of New London. The Kelo Court ruled that the City of New London’s use of its eminent domain authority to take property and give it to a private developer in the name of economic redevelopment was an appropriate public use. The Florida Legislature reacted by adopting legislation in 2006 intended to protect against such a scenario. This legislation strengthened the public purpose restriction by forbidding the transfer of condemned property to a private party within 10 years of the property’s condemnation. The new legislation also specifically prohibits the use of eminent domain to either abate or eliminate a public nuisance, or to prevent or eliminate slum or blight conditions. In addition, the Legislature proposed an amendment to the state’s constitution that similarly prohibited the transfer of condemned property to private parties. The amendment, which was soundly passed by the Florida voters, only allows exceptions to be made via a three-fifths majority vote of both legislative houses.
​What is full compensation? The purpose of the constitutional guarantee of full compensation is, as far as possible and practicable, to make a property owner, who is deprived of his or her property, whole. Although full compensation normally equates to the fair market value of the property at the time of the taking, this is not the exclusive standard used, and the method used to determine compensation depends on the particular circumstances of each case. When fair market value is used to determine full compensation, all factors that would reasonably be contemplated in negotiations between a willing seller and buyer should be considered. Moreover, the value of the property should be based on the highest and best use to which the property is being put or reasonably may be put. Moving costs, appraisal costs, expert witness fees, attorney’s fees, severance damages, and other reasonable costs should all be considered as part of the valuation of full compensation.​Furthermore, the property owner is entitled to interest from the date of the taking until the condemning authority pays the compensation.

Eminent Domian Law in Florida: An Overview

Eminent Domain Law in Florida: An Overview
By Jennifer B. Springfield and Alexander Boswell-Ebersole

​As an “inherent attribute of sovereignty,” the government is empowered to “take” privately owned land. Such authority, known as “eminent domain” or “condemnation,” is restricted in several ways by both the United States and Florida constitutions. The government may take private property by either initiating eminent domain proceedings so as to intentionally take the property or by regulating in a way that deprives a landowner of the use of his or her property.
Takings can take the form of either a partial taking (e.g., a strip of land), a temporary taking (e.g., associated with the completion of a project on another property), an easement or right of way (e.g., for the use of part of a property for power lines), or a complete taking. Regulatory takings generally lead to “inverse condemnation” actions, in which a private landowner initiates an action based on a claim that government regulation has in effect resulted in a taking.
​With a long tradition of private property rights in both Florida and the rest of the United States, the need for governments to use eminent domain power to address public needs often gives rise to impassioned disapproval from landowners and citizens. The use of this power can also result in significant financial and other personal consequences to those who are directly impacted. Nevertheless, whether representing private landowners or a condemning authority exercising the power of eminent domain, attorneys often find themselves in the midst of balancing between the public need for the use of certain property and the interests of private ownership.
​The main restrictions in the U.S. Constitution on the government’s exercise of eminent domain authority are that the government may only take property for “public use” and that it must give “just compensation” for the property taken. The Florida Constitution spells-out similar requirements, except that Florida’s Constitution employs the terms “public purpose” and “full compensation.” Not surprisingly, a significant body of case law exists interpreting these terms.
​The constitutional eminent domain restrictions are found in the Fifth Amendment to the U.S. Constitution, which has been interpreted to apply to state and local governments through the Fourteenth Amendment. Article X, § 6 of Florida’s Constitution contains the constitutional provisions specific to eminent domain in Florida, including the provision that “[n]o private property shall be taken except for a public purpose and with full compensation therefor . . . .” By requiring “full compensation,” the Florida Constitution gives more protection to landowners than the Federal Constitution’s “just compensation” requirement because it requires the landowner to be made whole by such compensation, including the costs incurred before a taking occurs. This requirement also gives rise to attorney’s fees and costs, which are generally not provided under federal law. The distinction between the U.S. Constitution’s “public use” and the Florida Constitution’s “public purpose” is not as clear.
​A relatively recent amendment to Article X, § 6 further restricts the government’s exercise of eminent domain in Florida. Florida citizens voted to approve an amendment in 2006 in response to a 2005 U.S. Supreme Court case. Kelo v. City of New London centered on the “public purpose” requirement and involved a group of homeowners that challenged the City’s use of eminent domain in an economically depressed area. The City wanted to demolish a group of homes in order to give the land to a private developer in the name of economic development. The Court found in favor of the City, thus paving the way for local governments to use eminent domain for the fairly broad purpose of economic development. The Kelo decision triggered a public outcry among property rights’ advocates across the nation and caused many states to change their eminent domain laws. In Florida, the amendment included a provision prohibiting government from transferring property taken by eminent domain to natural persons or private entities, unless approved by a three-fifths majority of the Legislature.
​Although the term “government” as used when discussing inherent eminent domain power generally refers to federal, state and local governments, such governmental entities can delegate the power to other entities such as transportation departments, public utilities and even, in limited circumstances, to private corporations. In Florida, several statutes grant eminent domain power to such entities ranging from the Department of Correction, Department of Transportation, and drainage and watershed improvement districts. Any entity exercising such delegated authority must abide by the same legal restrictions imposed upon federal, state and local governments.
Follow-up articles will provide more detailed discussions of some specific aspects of eminent domain law, including the proper purposes for which the eminent domain power can be used, the general procedures associated with eminent domain, and Florida’s rather robust provisions for attorney’s fees and costs associated with such proceedings. ​
Note: An inverse condemnation action originates from a “taking,” but it is a different process and will not be addressed in this series of articles.

Restrictive Covenants Can Impede Development Plans and Cost Landowners

RESTRICTIVE COVENANTS CAN IMPEDE DEVELOPMENT PLANS AND COST LANDOWNERS

By Jennifer B. Springfield

In addition to property inspections and verifying applicable land use designations and zoning regulations, anyone who is contemplating the purchase of land for development purposes should conduct a thorough review of the title records prior to purchase and early in the due diligence process to look for the existence of restrictive covenants (sometimes referred to as negative easements) and other easements, such as conservation easements. If such are found, consultation with an attorney concerning the impact of these on the potential purchaser’s development plans for the property should be sought. Often, owners of large tracts of land (grantors) will record a set of covenants on the entire or a significant portion of their lands prior to subdivision and sale. Such deed restrictions are usually intended to benefit all future owners of the smaller parcels bought and sold (grantees). The protections afforded by such easements becomes a property right which is enforceable by any neighboring purchaser for whose benefit it was intended.
While it may seem odd that one property owner can enforce restrictions on another person’s real property, the Second District Court of Appeal in Hagan v. Sabal Palms, Inc., 186 So. 2d (Fla. 2nd DCA 1966) explains the reasoning behind this by quoting from a 1933 Florida Supreme Court opinion in Osius v. Barton, 147 So. 862, 865:
The general theory behind the right to enforce restrictive covenants is that the covenants must have been made with or for the benefit of the one seeking to enforce them. The violation of a restrictive covenant creating a negative easement may be restrained at the suit of one for whose benefit the restriction was established, irrespective of whether there is privity of estate or of contract between the parties, or whether an action at law is maintainable. The action of a court of equity in such cases is not limited by rules of legal liability and does not depend upon legal privity of estate, or require that the parties invoking the aid of the court should come in under the covenant, if they are otherwise interested. The rule is well established that where a covenant in a deed provides against certain uses of the property conveyed which may be noxious or offensive to the neighborhood, inhabitants, those suffering from a breach of such covenant, though not parties to the deed, may be afforded relief in equity upon a showing that the covenant was for their benefit as owners of neighboring properties. At 865.

The courts have also held that while a grantor can reserve the right to amend deed restrictions, amendments must be reasonable. Reasonable amendments are defined as amendments which do not destroy the general scheme or plan of development. A general scheme exists where a tract of land is divided into lots to be sold subject to uniform restrictions imposed thereon. An unreasonable change is one that creates an inconsistent scheme, alters the relationship of lot owners to one another, modifies the relative benefits as between the grantor and grantees, or changes the right of lot owners to individual control over their own property.
Therefore, while it may be possible to alter restrictive covenants to facilitate a plan of development, it can be a time consuming and costly process to achieve. All of the property owners benefitting from the restrictions should be asked to approve any amendments to such covenants, and/or the purchaser/developer should be asked to hold harmless, defend and indemnify the lot owners who support an amendment which benefits a developer. No matter which approach is taken, all benefitted lot owners should be afforded due process – notice and the opportunity to be heard.

Quasi Judicial & Quasi-legislative Land Use Decisions

Quasi-Legislative & Quasi-Judicial Local Land Use Decisions
By Jennifer B. Springfield and Alexander Boswell-Ebersole

​The duties of local governing bodies, county and municipal commissions and plan boards, often include making land use decisions. These decisions frequently involve public hearings. When a land use application makes its way to a county or municipal governing body, also referred to as a “local government”, the body generally conducts one of two basic types of hearings. Depending on the nature of what the local government is being asked to decide, hearings either proceed as “quasi-legislative” or “quasi-judicial,” and local governing bodies either make “quasi-legislative” or “quasi-judicial” decisions. The word “quasi” as used in this context means “resembling” or “like,” and therefore quasi-judicial hearings/decisions are “like judicial proceedings,” while quasi-legislative hearings/decisions are “like legislative proceedings.”
​Other significant differences also exist between quasi-judicial and quasi-legislative hearings and decisions. The level of due process required, the burden of proof and standard of review, and the degree of immunity enjoyed by the local government and its representatives are some of the aspects that will differ depending on whether a hearing proceeds as quasi-legislative or quasi-judicial. Whether its large-scale development like Plum Creek’s plans for eastern Alachua County, Butler Plaza’s expansive expansion, the mixed-use, transit-oriented Springhill community west of Gainesville, or something more modest, like the construction of a new brewery downtown or an alteration to a private residence, plenty of opportunities exist to encounter the differences between quasi-legislative and quasi-judicial hearings and decisions.
​Quasi-legislative hearings/decisions are essentially those hearings/decisions where a local governing body formulates policy for future application to a broad area of public business. Whereas quasi-judicial hearings/decisions are those where the governing body applies previously established policy or regulations to a specific proposed activity. Examples of quasi-legislative land use decisions are the adoption and amendment of comprehensive plans and land development regulations. Plum Creek’s proposed development provides a local example of a land use action implicating a quasi-legislative decision because it seeks County Commission approval of a sector plan, which requires the comprehensive plan to be amended. On the other hand, decisions concerning zoning variances, special use permits, and code violations are all examples of quasi-judicial decisions.
​Quasi-legislative hearings proceed with less formality. While quasi-judicial hearings need not adhere to strict rules of evidence and procedure, certain standards of fairness must be met to assure that due process is provided. These standards include the right to present evidence, cross-examine witnesses, and demand that witnesses be sworn. Parties to quasi-legislative hearings do not typically enjoy such rights, at least not as a matter of due process requirements.
One of the most discussed distinctions between quasi-judicial and quasi-legislative proceedings involves ex parte communications or discussions with a member of the governing body, e.g., a commissioner, outside the presence of other parties. Nothing restricts ex parte communications when it comes to quasi-legislative hearings. Parties with an interest in such matters are generally free to speak to or otherwise contact the local representatives who will be making the quasi-legislative decisions. Conversely, significant restrictions apply to ex parte communications during quasi-judicial proceedings. Any ex parte communication made outside of a quasi-judicial hearing raises a presumption that the ex parte communication prejudices the final decision, unless the communication is disclosed at the hearing. If ex parte communication occurs and is not disclosed, the presumption of prejudice may only be rebutted if the local government can establish, pursuant to an analysis of several criteria articulated by case law, that the communication lacks any prejudicial effect. Since applicants seeking land use approvals, local government representatives, the general public, and other parties are usually accustomed to communicating freely, this restriction on ex parte communication often causes substantial confusion, misunderstanding and friction.
​In addition, different levels of immunity for local government representatives and different burdens of proof and standards of review also apply in quasi-legislative versus quasi-judicial hearings/decisions. When making a quasi-legislative decision, local government representatives personally enjoy absolute immunity from suit due to the fact that they are making policy decisions, but in making quasi-judicial decisions, i.e. applying established policy, local representatives merely enjoy qualified personal immunity. The degree of immunity afforded to representatives arose where a local commission denied a landowner’s application for a land use approval, leading the landowner to file suit against the commissioners individually under federal civil rights law claiming that the denial constituted a deprivation of private property without due process of law. The court found that the representatives did not have absolute immunity because the decision amounted to an application of a zoning ordinance and therefore, the qualified immunity that the representatives did enjoy required that they plead and establish an affirmative defense in order to avoid personal liability under a proper civil rights claim.
Finally, local governing bodies as a whole enjoy considerable discretion when making quasi-legislative decisions. As such, quasi-legislative decisions must merely satisfy the “fairly debatable” standard, i.e. the decision must not be arbitrary, discriminatory, or unreasonable. In contrast, quasi-judicial decisions are subject to review by certiorari in circuit court and the decision is reviewed under the “competent substantial evidence” standard. Due to this heightened standard, the governing body and the parties presenting evidence face greater responsibility to ensure that the record of the hearing comprehensively and accurately reflects the matters presented.

Striving for More Consistent Water-Related Permitting: “CUPcon” and Statewide ERP

The Florida Department of Environmental Protection (DEP) has been heading two efforts to increase the efficiency and statewide consistency of water-related permitting in Florida. These efforts focus on the Consumptive or Water Use Permitting (CUP/WUP) program and the Environmental Resource Permitting (ERP) program. An effort called the Consumptive Use Permitting Consistency Initiative—commonly referred to as “CUPcon”—addresses the CUP/WUP program, whereas a 2012 state law initiated the efforts to make the ERP program more consistent.
Along with the five water management districts (WMDs), which are responsible for implementing the CUP/WUP program, DEP has been working on CUPcon since 2011. The CUP/WUP program, one of the regulatory programs created by Florida’s Water Resources Act, is designed to provide for comprehensive water resource management, and it directs WMDs to regulate the use of ground and surface water by requiring permits for the withdrawal and consumptive use of larger quantities of water—quantities exceeding specified threshold amounts. However, over the years (the Act was passed in 1972), the individual WMDs have developed various and different rules regulating the CUP/WUP program, despite the fact that the WMDs all operate under the same statutory authority for the program. These complaints come, most notably, from permit applicants, especially those applicants seeking permits for the border areas of the WMDs or permits for more than one WMD jurisdiction.
To address the inconsistencies, Governor Rick Scott directed DEP (soon after he became governor) to carry out its legal obligation to supervise the WMDs so as to achieve greater statewide consistency among the WMDs’ regulatory activities; hence, the emergence of CUPcon. To date, DEP and the WMDs have worked toward a more streamlined scheme and greater consistency by holding a variety of stakeholder meetings, organizing work groups to develop solutions for the issues raised by stakeholders, and promulgating several amendments to the rules implementing the CUP/WUP program. As the CUP/WUP program has been developing for decades, it will continue to require reassessment and updating; however, for CUPcon purposes, these recent amendments essentially complete the initiative. So, stay tuned.
Unlike CUPcon, which was established at the behest of the Governor, the effort to establish a more consistent ERP program was mandated by legislation passed by the legislature in 2012. However, like CUPcon, the legislature sought to address the same kind of concern—i.e. inconsistency. With the help of the WMDs, DEP has already complied with the legislative mandate to adopt a statewide ERP rule by amending Chapter 62-330 of the Florida Administrative Code. The legislative mandate required, among other things, that the statewide DEP rule, which is also considered a rule of the WMDs, consist of various standardized ERP provisions to govern all ERP permits in the state, such as standardized forms and fees for permit applications and conditions for issuance of permits. Currently, the statewide rule authorizes three types of permits—general permits, conceptual permits, and individual permits, and DEP continues to make specific amendments and updates to Chapter 62-330 through the required rulemaking procedures.

Links….
Statutory Authority for CUP/WUP program
Statutory Authority for ERP program
DEP’s statewide ERP rule (62-330)