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Land Use and Local Government Law and Litigation

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M&H Profit, Inc. v. City of Panama City, 34 Fla. L. Weekly D2554b (Fla.1st DCA Dec. 14, 2009)

M&H Profit, Inc. v. City of Panama City, 28 S.3d 71, 34 Fla. L. Weekly D2554b (Fla.1st DCA Dec. 14, 2009)

In M&H Profit, Inc. v. City of Panama City, the 1st DCA upheld a circuit court decision to dismiss a Bert Harris claim because the City had not applied a new law to the property simply by enacting a change to the zoning code.

Under the facts (at least as stated), the property owner would have a bad time under the Act. The owner bought commercially (C-1) zoned property in the City that, at the time, was not subject to any height restrictions. The owner apparently intended to build a 20 story condominium. The most critical fact in the opinion (if true) is that the comprehensive plan apparently did not allow residential development in that area or district (it’s unclear whether the zoning code and plan were in conflict).

The owner met with the City to discuss plans, and the City then adopted changes (apparently already in the works, but who knows) to the code to limit height to 120 feet with certain setbacks and 150 feet under any circumstance. The owner then met “informally” with the City Manager and got a letter indicating that the proposal would not be permitted under the amended C-1 zoning. The owner did not appeal, but his attorney wrote to ask if there was any way around it.

The owner then filed a Bert Harris claim, asserting that the adoption of the zoning change inordinately burdened its property by preventing the approval of the 20 story condominium project.

The circuit court dismissed, agreeing with the City that the owner could not maintain a claim because no application was ever made and that only “as applied” challenges can be raised under the Act.

The 1st DCA upheld the circuit court decision. Citing the language of the Act, the Court noted that the plain language requires the application of law. Citing commentators who interpreted the Act as only providing an “as applied” challenge, the Court held: “Simply put, until an actual development plan is submitted, a court cannot determine whether the government action has “inordinately burdened” property.”\

Amazingly, the majority opinion makes only the most passing reference to Hall’s River:

Finally, appellant argues this case is controlled by Citrus County v. Halls River Development, Inc., 8 So. 3d 413 (Fla. 5th DCA 2009). It is unnecessary for us to address the correctness of that decision because we find it inapplicable in this case. Citrus County involved an amendment to a comprehensive plan which reclassified the land use category on a particular piece of property. In this case, we are dealing with adoption of a general land development regulation effective throughout an entire zoning district. Citrus County is, therefore, not controlling.

This opinion is in clear and direct conflict with Hall’s River and totally misstates the facts. The plan amendment in the Halls case did NOT apply only to the property in question.

However, the opinion does not stop there. Judge Wolf (former counsel for the Florida League of Cities) wrote the opinion and apparently could not help but include an otherwise totally unnecessary analysis of local home rule powers as justification for not broadly construing the clearly remedial Act. Judge Wolf creates from whole cloth an entirely new rule of law: “Thus, an interpretation of state statutes which would impede the ability of local government to protect the health and welfare of its citizens should be rejected unless the Legislature has clearly expressed the intent to limit or constrain local government action.” In this language, Judge Wolf takes Florida law regarding preemption (which Judge Wolf has helped expand to the point that the Legislature must use “magic words” to preempt local authority or to create uniform law) and raises it to an entirely new level. One imagines that there is a shrine to Article VIII of the Florida Constitution in his office, one that places the provisions governing home rule above every other provision in the document.

And it makes one wonder whether the Court’s “mis-cite” of Hall’s River – and attempt to avoid defining or certifying conflict – might not be an active attempt to avoid Supreme Court review of the opinon and its new home rule doctrine.

The dissent cites Hall’s River as a reason the landowner should be given the chance to make a case. I actually think that the majority opinion does the landowner a favor. Making a specific application for what he wants and being denied is the best way to demonstrate the effect of the ordinance and the only way to prove that the project could have or would have been approved under the prior ordinance – which (IMHO) would be central to being able to prove up the rest of the case under the Act.

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