Land Use and Local Government Law and Litigation

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2d DCA - Standing for Cert Review Must Be Established at Hearing

In an opinion certain to create further chaos before local commissions, the Second District in City of Ft. Myers v. Splitt et al, held that certain citizens and citizens groups had not established sufficient standing to maintain a certiorari challenge to the approval of a PUD ordinance.

The City approved a PUD. Neighbors and activist groups opposed it at the hearing, then brought both a certiorari challenge and a 163.3215 consistency challenge, which was later dropped.

The City claimed before the circuit court that the various petitioners had not demonstrated facts sufficient to establish standing under Renard v. Dade County for determining whether special damages are present. The Petitioners disagreed. The Circuit court found that the 163.3215 definitions of affected parties governed and ruled for the Petitioners.

The Second DCA found that once the consistency challenge was dropped, the Renard standing test applied, and that the facts in the record could not establish standing per Renard. The Court found:

We reject any suggestion that Mrs. Splitt et al. had standing even under
the more restrictive requirements of Renard and that the circuit court's failure to
apply the correct law therefore was harmless error. Standing under the Renard
special damages test is typically based on some impact on the litigant's
interest as an owner of property
. See, e.g., Kagan v. West, 677 So. 2d 905,
908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So. 2d 1165,
1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306
So. 2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that
if the circuit court had applied the correct law, it would have determined
that Mrs. Splitt et al. established their standing under the special damages test

Emphasis added.

Two critical problems will be accentuated by this decision as written. First, where a local ordinance does not specify who is a party and who has standing to appeal, a bunch of time will have to be spent establishing standing facts before the local commission. You can just see the issues - neighbors will quite properly start demanding 20-30 minutes so that they can enter sufficient facts to establish standing/party status.

Second, the Second District was clearly led into mis-stating or mis-interpreting the Renard rule as being somehow tied to "ownership" when it clearly was not. The Renard test turns on whether the complaining party can establish an interest that is protected by the ordinance involved, and affected by the decision, to a different extent than the community at large. Renters and frequent users of property (or roads, etc.) affected by a decision could establish such interests. Furthermore, nothing in Renard would prevent associational standing as otherwise established in Florida law.

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