1st DCA Confirms that Local Governments Must Issue Development Orders for Development as Defined Locally and Under Sec. 380.04, Fla. Stat., for Evalua
In Johnson v. Gulf County, the 1st DCA (on this case’s second trip from the circuit court to the 1st DCA), held that (1) a landowner was required to obtain a development order to fill certain lands alleged to be wetlands and to subdivide his property into 5 lots, so that (2) the complaining neighbors could bring a §163.3215 challenge against the action.
This action started in 2006. A landowner got a determination from FDEP that his property did not include jurisdicational wetlands of the state. He then began to fill them. He also used provisions of the
The neighbors complained that the filling violated the comprehensive plan, and also tried to bring claims under § 163.3215. The County claimed there was no need for any development permit or order (under the County code) and therefore nothing to challenge. The neighbors also claimed that the subdivision of the property violated the local ordinance.
In the first go-round, the circuit court dismissed the neighbors’ claims without leave to amend. The 1st DCA reversed, stating that the neighbors had to be given the chance to amend the complaint, but stating nothing about the substance of the matter. On remand, the circuit court dismissed the amended complaint.
The circuit court held that the filling of the wetlands (assuming they were) did not materially alter the use, density or intensity of use of the land. It found that no development order was necessary and that even if one was necessary, the filling of non-jurisdictional wetlands was not inconsistent with the plan. It also found that the “lot split/reconfigure” process used did not require full subdivision approval.
The 1st DCA reversed. It looked at the County’s plan, which included requirements that wetlands get certain protections, and determined that nothing in that plan (or the land development code) stated an FDEP determination that a wetland is not jurisdictional means that it is outside the County’s jurisdiction. It also held (and this is important to people in a lot of areas) that a minor replat process is also a development order
The 1st DCA properly found that, under the definition of development in the
The Court then did (again, appropriately) a de novo review of the provisions of the County’s subdivision regulations and found that the splitting/reconfiguring done here required a full subdivision.