Land Use and Local Government Law and Litigation

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1st DCA Confirms that Local Governments Must Issue Development Orders for Development as Defined Locally and Under Sec. 380.04, Fla. Stat., for Evalua

Johnson v. Gulf County, 26 So.3d 33, 34 Fla. L. Weekly D2625b (Fla. 1st DCA December 22, 2009)

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 Gulf County land development code to split one parcel and rearrange parcel boundaries so as to create five lots from what had previously been three, all without going through the County’s subdivision process.

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 Gulf County LDC (which is consistent with §380.04’s definition), clearing and filling land constitutes development. The Court held – and this is an obvious step (see Das v. Osceola County) – that the County had to issue a development order for a landowner to engage in development. The Court also found unambiguous language in the plan that appears to limit development within 50 feet of wetlands, whether or not they are jurisdictional, and that certain language in the LDC could not limit the scope and reach of the plan. The Court ordered the landowners to comply with the requirements of the plan and code, ordered the County issue a development order for the wetland filling, and ordered the circuit court to conduct a de novo hearing on whether that development order is consistent with the plan.

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.

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