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Land Use and Local Government Law and Litigation

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4th DCA - Yes, you get a Declaratory Action When A Local Gov't Gives You Nothing Else

In South Riverwalk Investments, LLC v City of Ft. Lauderdale, here's the opinion, we find yet another shining example of a commitment to fair play on the part of a local government. This time, anyway, the developer at least will get a day in court -- though over the strident position of the City that an application simply has no remedy when a local government simply fails to act on a development application.

In this case, the applicant filed a site plan for a new project. The City had (as do some others) an "area wide density" inside a Regional Activity Center. It then appeared that there was no residential density left to allocate (we are not told what uses might be left to the property), so the site plan was neither approved nor denied, but remained "open". All other issues had been addressed except the availability of density. Under the local code a site plan remains open until approved or denied.

And (at least based on later allegation) the City starts a plan amendment process that might allocate more density to the Regional Activity Center.

But then, lo!, the City simply decides that, at this point, the site plan no longer exists! Not denied (which might have triggered standing for an administrative appeal, or if none were available, then a dec action, suit under Bert Harris, takings or some other theory), but simply non-extent.

So the developer files a declaratory action to determine, basically, whether it had the right to "stand in line" until density become available. The City's response: sorry, you have no standing. You can't claim when rights might be available, so you don't have any issue to decide. It even convinced the circuit court to dismiss the action with prejudice.

The 4th reversed, holding that there was a real and present controversy with respect to the question of whether the developer has rights in the site plan to density once (and whether) it becomes available. Even though that availability is a future event, the determination is a present need.

And while the court never reaches it (probably not in the record) we are left to ponder why the City would behave this way. Does it want the density to go to another developer? Does it want to change the rules against some aspect of this site plan? Does it simply want to get more review fees? Are there some other vested rights that the City wants to defeat?

Let's be clear: as wrong as it is, the developer almost certainly would have no due process claim under the 14th amendment that could be enforced through an action under USC s1983 (with attorney's fees at the end) because the court would find that the developer had no "property" in the permit (though the permit is the expression of the government regulation of the land). Whether due process under the Florida constitution would provide some protection, we don't know, because it hasn't really been litigated separately -- but historically Florida courts would give that protection.

But I suspect that the City was taking the view that if a developer doesn't have a property right that would be recognized under federal due process principles, it didn't have an "interest" that could be protected by a declaratory action. Thanks to the 4th DCA for finding otherwise.

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