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Land Use and Local Government Law and Litigation

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Fifth DCA Reverses Itself, Circuit Court and Board of Adjustment to Hold that Special Use Permit was Inconsistent with Comprhensive Plan

Keene v. Zoning Bd. of Adjustment, et. al., 22 S.3d 665, 34 Fla. L. Weekly D2231a (Fla. 5th DCA Oct. 30, 2009)

The Zoning Board issued a Special Use Permit to conduct a horseback riding school and hold endurance trail ride competitions on land designated “Rural Residential” by Putnam County. The circuit court upheld the permit. In Keene v. Zoning Bd. of Adjustment, the 5th DCA on rehearing, reversed the circuit court.

While the action is described as one for “declaratory relief,” review of the footnotes and the dissent clarifies that it was brought pursuant to §163.3215, Fla. Stat. The majority finds that the SUP was a development order (it permitted a material alteration in the use of land, if one parses §380.04), subject to challenge on the basis that the activity was inconsistent with the comprehensive plan. The majority then looks to language used by the applicant and the County to describe the use as “commercial: agriculture related” and comparies it to the Plan. The 5th DCA concludes the Plan does not permit such uses in the “Rural Residential” land use category, but does permit “resource-based recreational uses.” The Court reviewed the record and determined that, based on how the Plan itself and the LDC are organized and interpreted, the uses clearly fall into the commercial realm and are not permitted.

The majority’s approach is consistent with cases like Dixon v. City of Jacksonville, Saddeh v. City of Jacksonville, and Bay County v. Harrison, holding (a) courts review the provisions of comprehensive plans de novo and do not give deference to local interpretation, and (b) plans are interpreted so that land uses not specifically permitted (or permitted by direct implication) within a land use category are presumed to be prohibited, particularly when they are permitted in other categories.

The dissent by Judge Griffin questions whether the SUP was a development order subject to challenge under § 163.3215. The dissent’s main focus and claim is that the majority essentially overanalyses the issue and ignores the provision of the Rural Residential category that permits “Activity and Resource Based recreational uses.” In her review of the record, Judge Griffin focused on the findings of the Zoning Board and the circuit court judges that tied the “boarding and riding school uses” more to recreational uses than commercial uses, and noted that commercial uses that are recreation-oriented were permitted. Judge Griffin also questioned the analytic approach to consistency. It appears she would hold in order to find a development order inconsistent with a plan, there must be a specific provision that is violated. I think this holds true with policies that involve development standards (prescribing wetland buffers, for example), but is much more problematic when it involves the uses permitted in particular land use categories.

This case is very interesting and important because even though they come to different conclusions, both the majority opinion and the dissent are doing exactly what the courts should be doing: digging into the meaning of the plan, the LDCs and the record to determine whether the local government is or is not acting within the boundaries of the Plan. By passing §163.3215, the Legislature instructed the courts to “act as super-zoning boards” in the interpretation of the plan.

As a side note, this is one of those cases where I read the opinions and think that I could have gone either way on the analysis. All in all, I think the majority opinion got too caught up in the staff’s early categorization of the use as “agriculture: commercial” and didn’t focus enough on whether the use could be considered “activity and resource based recreational.” That said, and without the benefit of the record, the combination of a boarding facility, a riding school, and endurance contests seems to me to push it into a commercial use that is not “activity based recreation.” I also recognize that rural areas did, do and should permit more flexibility in how the lands are used productively and I would probably lean the other way if there was evidence that other, similar types of uses in the area and in the same land use category had similar levels of activity and mipact. If this kind of commercial activity related to rural/agricultural uses was intended, the Plan should have included a definition or description of "activity based recreation" to include things like canoe/kayak rentals, riding/boarding facilities, etc.

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