Legal Report, October 2021
General Counsel, Keith Davis
1. Imhof v. Walton County, 2021 Fla. App. LEXIS 13042 (Fla. 1st DCA 2021). Consistency with Comprehensive Plan; statutory interpretation.
In Imhof, Walton County (“County”) approved a development order from Ashwood Holdings Florida, LLC ("Ashwood") to build a residential planned unit development (“PUD”). Two individuals and two environmental nonprofits (collectively “Appellants”) appealed Walton County’s development order under § 163.3215(3), F.S, which allows parties to challenge a local government’s development order on the basis of the order’s inconsistency with the local government’s Comprehensive Plan (“Consistency Statute”). Appellants argued that the County’s development order was inconsistent with its Comprehensive Plan not only with respect to the PUD’s density and intensity, but also because the proposed development violated setback, buffer, and sidewalk requirements within the Comprehensive Plan. In response, the County and Ashwood argued that the development order was “entirely consistent” with the County’s Comprehensive Plan, and even assuming arguendo that some part was not consistent, Florida’s Consistency Statute only allows arguments addressing comprehensive plan inconsistencies dealing with the development’s land use, density, and intensity of use. The trial court, relying on the Second District Court of Appeal’s (“DCA’s”) decision in Heine v. Lee County, sided with the County and Ashwood by concluding that Appellants’ consistency arguments in this case were only limited to land use, density, and intensity of use, and that the County’s development order was ultimately consistent with its Comprehensive Plan.
On appeal, however, the First DCA reversed the trial court’s ruling for the County and Ashwood and certified a conflict with the Second DCA’s decision in Heine. In its opinion, the First DCA examined the Consistency Statute’s language, which allows an adversely affected party to challenge a local government’s development order “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.” § 163.3215(3), F.S. (emphasis added). Examining the two “which’s” in the above provision and their respective purposes as modifying pronouns, the First DCA concluded that, when an adversely affected party raises a consistency challenge against a local government’s development order, the challenged development order must materially alter the land use, density, or intensity of a piece of property, but the consistency challenge itself can raise any claims of inconsistency between a development order and the corresponding Comprehensive Plan, including use, density, intensity, violation of setback or buffer requirements, or any other lack of reasonable relationship between the development order and the Comprehensive Plan or any of its elements (“Complete Consistency”). Conversely, the Second DCA in Heine adopted a narrower reading of Florida’s Consistency Statute by concluding that the plain language of the Statute only allows consistency challenges strictly related to the development’s use, density, or intensity of the property (“Use, Density, & Intensity Consistency”). The opposing interpretations of Florida’s Consistency Statute from the First DCA (“Complete Consistency”) and the Second DCA (“Use, Density, & Intensity Consistency”) indicate a key split in the Florida courts with respect to challenges to local government approvals of development orders under Florida’s Consistency Statute. The Fourth DCA has not opined on the direct issue presented in Imhof and Heine, but has ruled previously that Florida’s Consistency Statute should be construed broadly with respect to parties’ standing. Education Development Center v. Palm Beach County (4th DCA 1999). Following the First DCA’s remand of the Imhof case back to the trial level, there is a high likelihood of additional appeals, as well as a final ruling from the Florida Supreme Court based on the certified conflict between the Imhof and Heine decisions.
2. West Palm Beach v. Haver, 2021 Fla. LEXIS 1572(Fla. 2021). Injunctive relief against local governments; code enforcement.
This case involves plaintiff landowners Peter and Galina Haver (“Havers”) seeking a legal remedy to require the City of West Palm Beach (“City”) to enforce its zoning code against the Havers’ across-the-street neighbor. Specifically, the Havers complained that the neighbor was running a group home in violation of those uses permitted by the City’s single-family, low-density zoning district. When the City refused to open a code enforcement case against the neighbor, the Havers filed suit and requested a court-ordered injunction to require the City to enforce its zoning code. The trial court ruled in favor of the City and dismissed all claims within the Havers' suit. On appeal, the Fourth DCA partially affirmed the trial court’s decision, but reversed with respect to the Havers’ request for injunctive relief. In its decision, the Fourth DCA concluded that the Havers' could potentially be entitled to injunctive relief against the City if the trial court concluded that Havers adequately pled “special injuries or damages” as required by Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958).
The Fourth DCA’s decision was definitively overruled on appeal, however, as the Florida Supreme Court issued a unanimous opinion which concluded that the Fourth DCA erred in its decision that the Havers were potentially entitled to injunctive relief based on the holding in Boucher. In its opinion, the Florida Supreme Court made factual distinctions between the current case and Boucher, noting specifically that the plaintiff in Boucher had alleged that the challenged municipality violated its own zoning ordinance when issuing a building permit. Alternatively, in the current case, the Havers sought an injunction based on the City’s failure to take enforcement action, not based on any allegation that the City violated its own zoning code. As clarified by the Florida Supreme Court, neither Boucher nor any other state Supreme Court case authorizes a claim for injunctive relief against a municipality based on a decision to not initiate code enforcement against a third party, where there are no allegations that the municipality itself has acted illegally. The Florida Supreme Court added that the Havers’ arguments invite “judicial interference” into those “administrative enforcement decisions” that have traditionally been discretionary and which require allocation of scarce government resources. Such active judicial oversight of local enforcement issues, the state Supreme Court opined, may only be authorized by state law or municipal code. Thus, the Florida Supreme Court quashed the Fourth DCA’s opinion with respect to its granting of injunctive relief to the Havers, and remanded the case to the Fourth DCA with directions for dismissal. This decision establishes that, absent a municipality’s violation of its own ordinance, a challenging party may not bring suit against that municipality to enforce its code against third parties, and overall endorses the important legal principle that municipalities have discretion to initiate their own code enforcement cases.