Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

A good example

This 4th DCA opinion provides a good example of how courts should interpret zoning laws. The case involves the interpretation of covenants restricting activities in a subdivision. Such restrictions, note the courts, are to be construed strictly and in favor of the landowner because covenants that restrict use are not favored.

The same policy underlies the longstanding rule that zoning and similar land use regulations are in derogation of common law and should be strictly construed in favor of the landowner; also that the government can't "read in" restrictions that aren't there. Here's a partial string cite listing some of the relevant cases:

Rinker v. City of North Miami, 286 So. 2d 552 (Fla. 1973) (city could not limit operation of cement mixing plant based on language intended to limit the construction of concrete pipes and other materials) conformed to 288 So.2d 997 (Fla. 3rd DCA); Bellaire v. City of Treasure Island, 611 So.2d 1285 (Fla. 2d DCA 1992) (city could not redefine “condominium” to mean “multi-family” to limit rental where condominiums were defined as single family units); Powell v City of Delray Beach, 711 So.2d 1307 (Fla. 4th DCA 1998) (city could not insert requirement into land development regulations to require homeowner to pave entire alley), Thomas v. Crescent City, 503 So. 2d 1299 (Fla. 5th DCA 1987)(city could not prohibit the establishment of trailer rental pads in district that permitted “any commercial use of a retail or service nature”); Hoffman v. Brevard County Board of Commissioners, 390 So. 2d 445 (Fla. 5th DCA 1980); Halifax Area Council on Alcoholism v. Daytona Beach, 385 So. 2d 184 (Fla. 5th DCA 1980); Miami Beach v. 100 Lincoln Road, Inc. 214 So. 2d 39 (Fla. 3rd DCA 1968).

There's also a good, recent case from the 3d DCA - the Castro case that held that there's a difference between "parking" and "storing", and that a provision that prohibitted boat storage couldn't support a citation against a homeowner who simply "parked" his boat in his driveway.

Moreover, the usual policy that grants deference to the "agency's" interpretation historically does NOT apply to land use regulations. Instead, words used in a zoning ordinance to permit certain uses should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner. Rose v. Town of Hillsboro Beach, 216 So.2d 258 (Fla.App.4th 1968); Brooks v. Anastasia Mosquito Control Dist., 148 So.2d 64 (Fla.App.1st 1963); Maryland Casualty Co. v. Sutherland, 125 Fla. 282, 169 So. 679 (1936); Marion County Hospital District v. Namer, 225 So.2d 442 (Fla.App.1st 1969), citing Maryland Casualty, supra; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497 (Fla.1942); Gay v. City of Coral Gables, 47 So.2d 529 (Fla.1950); Union Trust Co. v. Lucas, 125 So.2d 582 (Fla.App.2d 1960); and State ex rel. Lacedonia v. Harvey, 68 So.2d 817 (Fla.1953).

Unfortunately, these core princples are too often ignored, not only by the courts, but also by the local government lawyers who screen the codes and represent the local government in enforcement actions.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.