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. 

Fourth DCA Inexplicably Holds that Plat Approval is Not A Development Order - Then Reverses Itself on Reconsideration

In Graves v. City of Pompano Beach,  the Fourth District Court first held that a plat approval was not a “development order” subject to challenge under    § 163.3215.  The opinion, which is inconsistent with other opinions and I believed applies an incorrect rule of statutory interpretation, holds that an application for a plat approval does not meet the definition of a development permit.

A “development permit” is defined in § 163.3164, to include “. . . any bulding permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local governing having the effect of permitting the development of land.”  The court held because a plat does not (in and of itself) authorize “development” as that term is defined in the statute, it is not a development order.

Not only does this opinion misapply the “trailing comma” rule by applying the last modifier to the entire set, but it is also contrary to prior opinions and the clear intent of the statute.  Under this case, the ONLY development permits that would be subject to challenge under 163.3215 would be earth moving permits, final plats (approving utilities, etc),  and building permits. I cannot see how the the attorneys for the developer and the City could argue this interpretation with any clear professional conscience. 

On rehearing, the Court entered a new opinion.  The Court reversed its initial position, and found that the action was in fact a “development order” subject to challenge under § 163.3215.  The opinion on rehearing found that “section 163.3215 does not suggest that a development order is one which grants development rights only in the advanced stages of the development process or to a shovel-ready project.”  The dissent clung to the idea that a “plat approval” is not covered by the list of permit types in § 163.3164’s definition of development permit, and that it does not “permit the development of land.”  The dissent ignored the fact that a “plat approval” is a “subdivision approval” by another name.

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