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. 

Development Orders Must Be Consistent with the Comprehensive Plan in Effect on the Date of Rendition of the Order

In Lake Rosa Coalition v. Bd of County Comm'rs of Putnam County, here's the opinion, the 5th DCA held that in a challenge under 163.3215, the relevent comprehensive plan provisions are those in effect on the date that a development order is issued, rather those in effect when the application was made. The court also did a nice job of identifying which orders can be challenged under 163.3215 (or rather, what conditions will warrent relief).

A building permit for additional dormatories for a campground was applied for in November; in early December the building plans were approved, but the building permit was not to be issued pending the resolution of a septic system issue; the permit was not actually granted until April. The land use designation was changed in December, after the plan approval.

The 5th held that it wasn't even close: the use, density and intensity of the buildings allowed by the building permit all were facially inconsistent with the new plan category. There was no "vested right" to proceed under the application (under the facts), and the plan in effect at the time of the issuance, not the application, governed.

Note there apparently is no "savings policy" in the plan to permit development consistent with pre-existing zoning, even if otherwise inconsistent with the land use designation; in fact there is a policy aimed at correcting inconsistent land uses through the control of building permits (that is, if your existing building is consistent with zoning, but not the plan, you can't get a building permit).

The opinion contains a nice section on how the meaning of use, density and intensity for the application of 163.3215 to development orders:

Adverting to the provisions of section 163.3215(1), a challenge to a development may arise under any one of the following three instances: 1) where it materially alters the use of a property; 2) where it materially alters the density of property; or 3) where the intensity of the use of the property is materially altered.
. . .
We believe that the County acted inconsistently with the objectives of the Comprehensive Plan by granting the building permit to the Alliance because the permit allows improvements and additions to the nonconforming use of camp property in clear violation of the Comprehensive Plan’s designation of the property as Rural Residential. For this reason alone, issuance of the building permit was improper. Nevertheless, we will briefly explain why issuance of the permit was improper for the second and third reasons under section 163.3215(1).

The evidence reveals that the additional housing provided by the new dormitory would increase the population density of the camp by 28% and increase the intensity of the use of the structures at the camp. We note that section 163.3177(6)(a), Florida Statutes (2001), requires every comprehensive plan to contain “standards to be followed in the control and distribution of population densities, and building and structure intensities,” with each land use category being defined “in terms of the types of uses included, and specific standards for the density or intensity of use.” Density is distinguished from intensity because the former relates to population while the latter relates to structures. See Florida Wildlife Fed’n v. Collier County, 819 So. 2d 200 (Fla. 1st DCA 2002); see also § 163.3221(4)(a)2., Fla. Stat. (2001) (referencing “[a] change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land . . . .”). Thus, a development order that permits an increase in the number or size of structures on land is an alteration of the intensity of the use of the land, and a development order that permits an increase in population is an alteration of density. Here, both density and intensity were materially affected by issuance of the building permit to the Alliance.
So, a development order that changes the permitted uses, densities or intensities from a) what is already permitted, or b) what exists on the ground today, can be challenged under 163.3215 to determine its consistency with the plan. Note that while the opinion doesn't say so, the statute talks to changes, not increases, so a decrease in uses, intensities or densities also might be a material change subject to challenge (especially now that Parker has been legislatively overturned).

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