Legal Report, August 2017

General Counsel, Jennifer G. Ashton
Corbett, White, Davis & Ashton, P.A.

1. Heine v. Lee Cnty., 2017 Fla. App. LEXIS 9484, 42 Fla. L. Weekly D 1473, 2017 WL 2821553 (Fla. 2nd DCA 2017) Consistency; Comprehensive Planning.

Alico West Fund, LLC (“Alico”) owns over 800 acres of land in Lee County. The Heines live in a residential community south of the Alico property. In 2010, the County amended its comprehensive plan to change the land use designation for a portion of Alico's property to "University Community." The amendment significantly increased the potential development densities and intensities of Alico's property. Following amendment, Alico applied to rezone a portion of its property for a project called CenterPlace to cater to the housing, commercial, and recreational needs of nearby University students, faculty, and staff. The County ultimately approved a resolution granting Alico's application which rezoned their property to "Compact Planned Development," and authorized an increase in development of up to 250 hotel rooms, 246,500 square feet of commercial/retail space, 100,000 square feet of office space, and 300,000 square feet of research and development space. The resolution also authorized up to 250 wet boat slips on the North Lake, 50 dry slips, installation of a boat ramp, and up to 20 trailer spaces.

The Heines challenged the County’s rezoning of Alico’s property by suing the County and Alico under Section 163.3215(3), Florida Statutes.  Specifically, the Heines alleged that the rezoning was inconsistent with the County's comprehensive plan because it: 1) failed to include enforcement conditions relating to square footage and density allowances; 2) failed to ensure the installation of plantings, buffers, and landscaping "using xeriscape principles"; 3) failed to "ensure that there will be a mix of housing types sufficient to meet the varying lifestyle of students, faculty, administration and support staff"; 4) failed to obtain prior approval by the University; 5) failed to give adequate consideration to noise, security, and visual impacts on the property; and, 6) failed to meet the 2010 comprehensive plan amendment's safety requirements pertaining to the University. The trial court granted summary judgment in favor of Alico and the County because the Heines’ challenges did not address “uses, densities, or intensities of use,” which are required for a Section 163.3215(3) challenge.

On appeal, the Second District Court of Appeals affirmed, holding that § 163.3215(3), Florida Statutes, clearly and unambiguously enunciates only three bases upon which a party can challenge a development order’s inconsistency with the comprehensive plan.  They are: use, density, and intensity.  The Heines’ challenges to the County’s rezoning did not “fall within the ken of these three areas.”

2. Posting of Budget on Municipality’s Official Website ***Reminder ***

Section 166.241(3), Florida Statutes, states that a municipality’s tentative budget must be posted on the municipality’s official website at least two (2) days before its budget hearings.  The final adopted budget must be posted on the municipality’s official website within 30 days after adoption.  If the municipality does not operate an official website, then the municipality must, within a reasonable period of time, transmit the tentative budget and final budget to the county administrator who shall post the budgets on the county’s website.