Land Use and Local Government Law and Litigation

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UPDATED: DRI DO vesting under 163.3167(8) limited by 1st DCA; comp plan consistency applies to "sub-substantial" deviations

I was bemoaning the paucity of new land uses cases to post the other day. Just in time for the holiday season, the 1st DCA released this opinion on Monday, which holds that DRI's are not vested against the application of the local comprehensive plan for changes in the Development Order, even when those changes do not reach the scope of a "substantial deviation."

The specific situation (which will almost certainly cause litigation over whether the opinion means what it says) was that a developer proposed a change in a longstanding but continually devleoping DRI development order. The change would have altered the use of several parcels, adding 66 units and allowing a higher high-rise that was approved in the DO.

The RC and DCA found that the changes did not qualify as a substantial deviation. The developer applied for a NOA to change the DO with the County Commission, which denied it. This threw the issue to the gov and cabinet sitting as FLWAC, who denied the change, based on its inconsistency with elements of the comprehensive plan (not on the basis that it was, in fact, a substantial deviation).

The 1st DCA entered an en banc opinon (with dissents) to bind the entire panel. Here's the key holding:

Once a DRI has been approved, the right to develop pursuant to the terms of the DRI vests. See ยง 163.3167(8), Fla. Stat. (2001). Vesting means development rights obtained through a previously approved DRI are not lost by subsequent changes in the law. It does not, and cannot, create entitlement to greater rights than those originally obtained.

Accordingly, a proposed change jeopardizes vested rights because, by definition, the change seeks different development rights than those development rights originally approved

While the facts here involve a decision on an NOA by FLWAC, the language here is stark: it says, essentially, that any change to a DRI DO does not enjoy the statutory vesting against the provisions of Chapter 163. This means that they are subject to challenge under s. 163.3215 for consistency with the Plan. That is a BIG deal.

While the 1st's en banc opinion pretty much ensures that this will apply to most administrative reviews of DRI issues, it remains to be seen whether other District Courts will apply it to DRI changes within their jurisdictions, and it seems a good bet that someone will disagree and the issue will eventually wend its way to the Supremes. In the meantime, I suspect that we'll see a bill in the next legislature to "fix" this.

PS - I got an email from a friend who took the above as being critical of the opinion. I'm not - I think that it's consistent with the clear and limited language of the vesting provision, not to mention the basic point that such exemptions should be strictly construed. It's consistent with the thinking of a lot of folks I know, but it never was clearly litigated - and the Edgewater case threw the whole matter into doubt.

I am surprised that this had to come up in such a sideways fashion rather than head on in a 163.3215 challenge to a local government action on a DO; especially since 3d parties have been excluded from challenging those DO's through the administrative process of 380.07. That section does not make the 380.07 challenge the sole remedy to address the adoption of a DRI development order, so if the DO doens't have the vested exemption, it seems to me to be fair game under 3215. But it appears that (other than Edgewater) no-one's done it.

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