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. 

1st DCA - "Reasonableness" Must Be Used When Interpreting Plan Provisions

In Arbor Properties et al v Lake Jackson Protection Alliance et al, the 1st DCA overturned the trial court's determination that a PUD approval vioated certain watershed policies of the Leon County Plan.

This was a classic problem of "strict scrutiny" rules under Machado v. Musgrove creating an absurd result.  The Leon County Plan Conservation Element includes special provisions that apply to developments in the Lake Jackson watershed, including on that required the land development regulations to have special designations for the watershed that would effectively preclude residential development.  However, one of the Future Land Use policies indicates that the designation requirements are not intended to apply in "closed sub-basins" -  basins that don't discharge water into the Lake, even though they are within the general Lake Jackson drainage basin.

Opponents challenged and convinced the trial judge that because the FLU policy did not specify that it was intended to create an exclusion to the specific Conservation Element  policy (it was simply included a a sub-policy below the general policy), it didn't have that legal effect.

The 1st DCA ruled that the entire set of policies had to be read together and that in that light, the only reasonable interpretation was that the FLU policy was intended to create an exception to the Conservation Element policy, and was consistent with its intent.  Supporting this analysis, the Court said:

The Florida Legislature has established that in reviewing consistency, a court may consider the "reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan, or element or elements thereof, in relation to the governmental action or development regulation under consideration." § 163.3194(4)(a), Fla. Stat.
Here, the trial court’s order incorrectly reviewed the development order and the Plan by neglecting to consider the “reasonableness of the comprehensive plan, or element or elements thereof.” By reviewing the applicable provisions of the Plan as a whole, the most reasonable and holistic interpretation, based on both the text and the synthesis of the document, we have no doubt that the development order is consistent with the Plan. This is necessarily so, because when read in pari materia, it is clear that the Plan and its elements provide that within certain Zones that actually discharge rainwater runoff into Lake Jackson, Leon County has established much more stringent development limitations for one primary purpose: to protect Lake Jackson from polluted rainwater runoff


It is hard to underestimate the importance of this decision to landowners/developers.   For years, neighbors and local government attorneys have used the "each and every element" language in Machado to argue that development orders must be consistent with unreasonable, atomic analyses of particular plan provisions - which can easily be taken out of context.  Every land use lawyer in Florida knows the result:  every complex plan in the state has provisions that can be used to defeat ANY development order at any time through an unreasoning application of the consistency doctrine and vague and subjective plan provisions.   This opinion is a strong stake in the ground that "strict scrutiny" must be balanced by a reasonable application and result.

The Court went on to reject an argument that this interpretation would create other "absurd" results in applying the Plan - citing not only the speculative nature of those claims, but also stating that the "absurdity" doctrine in statutory construction should be applied restrively. 

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