LAW OFFICE OF ROBERT K. LINCOLN, P.A.

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. 

Fifth DCA Reduces Standing in 163.3215 Challenges to a Pleading Exercise

In Save the Homosassa River Aliance v. Citrus County, the 5th District dramatically expanded the scope of standing under section 163.3215, essentially eliminating any meaningful limitation from the language that requires a plaintiff to claim and demonstrate impacts to an interest protected by the plan that exceeds that of the general public.

The challenge involved a rezoning that increased density, from 15 to 87 units.

In reviewing the cited allegations of the complaint, at least one of the plaintiffs probably alleged sufficient standing based on potential traffic impacts to a hurricane evacuation route. But the rest of the allegations are just junk - claims that the plaintiffs enjoyed canoeing on the river that are not then supported by any claim of particular plan policies that protect those interests and that would be violated by the development order.

In order to gut the definition of "aggrieved or adversely affected" in the statute, the court sets up a straw dog of a "unique" interest or impact - which is clearly not required, and then allows "any" impact to "any" interest:

The allegations show that the Plaintiffs all have a direct and demonstrated
concern for the protection of the interests furthered by the comprehensive
plan that would be adversely affected by allowing a development that violates the plan.
An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a
"unique harm" limitation onto the statute would make it impossible in most
cases to establish standing and would leave counties free to ignore the plan
because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right.

But for the most part, the allegation in the complaint cited by the Court didn't claim that the development would harm the protected interests that were claimed in any meaningful way. The court's attempts to distinguish the earlier Keyser and Putnam County Envt'l Council opinions are simply unconvincing.

The REAL problem is that the courts now permit "strict scrutiny" of the plan that doesn't discriminate between the broad language of goals or objectives, and many totally subjective policies. There is no way for ANY development to be consistent with most plans if every part of the plan is read expansively.

Read the dissent to this case. What's coming is an explosion of cases that will essentially halt any development that anyone doesn't like for as long as the NIMBY-neighbors can afford to litigate.

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