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. 

Major Payne: The 3d DCA Holds that Zoning Policy Is Relevant to Plan Amendments

In Payne et al v. Dep't of Community Affairs et al, (Payne III), at the end of a long saga, the 3d DCA overturned the Dept's final order on some very interesting grounds.

First, the court found that DCA had improperly denied the plaintiffs, whose petition was determined timely filed in Payne I (this involved the question of whether the "rendition" occurred when passed by the Council or when the 10 day "veto" window expired - the court held that the veto date was relevant) the opportunity to amend their petition to include policy issues from the relevant zoning regulations.

Second, the court found that the Department and DOAH had improperly proceeded to hear the case without the participation of Marine One, whose standing had been determined in Payne II. That case involved whether interests in regulation under the zoning code could be substantial interests that supported standing.

One of the big issues was the effect of the "Port of Miami Plan" - the DCA, City and DOAH said it wasn't an effective part of the comp plan for internal consistency review, the 3d DCA in Payne II said it was. So proceeding without taking the holding of Payne II into account was error.

The court also found that DCA, DOAH and the City improperly treated the plan amendment as a small scale amendment when it would permit multi-family mixed uses in excess of 10 units per acre. The city claimed that the "urban infill" exception to the density cap applied -- to the entire city -- but the court did not buy that. Of course, this issue hadn't been pled (guess it will on remand!), but the court found it necessary to examine and determine.

The court then found a number of plan policies that it contended are internally inconsistent with the conversion of lands from water-dependent/water-related industrial uses to mixed use commercial and residential. Ok, so far.

But the court then went and found inconsistency between the amendments and
- the purpose of the applicable pre-existing zoning districts;
- policies in an undadopted Miami River Master Plan planning study

In its conclusion, the Court got down to its real objection:

We further note that these "small scale" amendments, when viewed together as a
whole, are changing the character of the Miami River waterfront without proper
long range planning or input from appropriate agencies, departments, and citizen
groups. Because the Miami River is such an important asset to the City, County,
and State, such piecemeal, haphazard changes are not only ill-advised, they are
contrary to the goals and objectives of those who worked together, debated, and
determined how the Miami River waterfront should be developed. If the City’s
vision for the Miami River has changed, then that change should be clearly
reflected in its Comprehensive Plan to provide industries and land owners along
the Miami River with fair notice.
In other words, the Court's position is that the City has to amend multiple policies in order to change land use designations along the Miami River waterfront.

Did the Court get the various technical issues right? I don't know - not having read all of the material. But the Court is clearly taking a position on policy in the broad sense, rather than only looking at the statute and the plan.

2055 Wood Street, Suite 206, Sarasota, FL 34237      Phone (941) 681-8700

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.