An Introduction to Land Use Approvals and Appeals June 7, 2019 An Introduction to Land Use Approvals and Appeals Christopher D. Donovan Sarah E. Spector © 2019 Roetzel & Andress LPA

THE APPROVAL PROCESS © 2019 Roetzel & Andress LPA

The Approval Process Identify the Procedure Know the Opposition Know What Type of Decision Will Be Issued Set the Record

Who will review/approve the request? Staff Hearing Examiner Planning Agency/Commission Board of County Commissioners/ City/Town/Village Council

How will the request be reviewed? Administratively Public hearing

If notice is required, what is required, who is responsible for providing it, and when must it be provided? When must it be provided? Before each meeting or hearing Before only hearing where final decision will be made Continuous Who is responsible for providing it? Applicant Applicant and local government Local government What is required? Posted notice Mailed Published

The Approval Process Identify the Procedure Know the Opposition Know What Type of Decision Will Be Issued Set the Record

Is there opposition? Staff Adjacent land owners Public Interest Groups

The Approval Process Identify the Procedure Know the Opposition Know What Type of Decision Will Be Issued Set the Record

What type of decision will be issued? There are significant differences in how one obtains judicial review for each type of decision Executive Legislative Quasi-judicial

Executive = Single government official carrying out the law Generally unreviewable Legislative = Change existing law to make new rule for later application to everyone Declaratory/injunctive relief Quasi-judicial = Investigate, apply, and enforce existing law to specific scenario after affording due process Certiorari review

Most land use decisions are QUASI-JUDICIAL Variances Site specific rezoning Development orders Site plan approval Building permits

Why is this important? Commissions and councils cannot legislate when sitting in a quasi- judicial capacity

The Approval Process Identify the Procedure Know the Opposition Know What Type of Decision Will Be Issued Set the Record

What must the reviewing body base its decision on? Code-established review criteria Comprehensive plan compliance

THE APPEAL PROCESS © 2019 Roetzel & Andress LPA

The Appeal Process Identify the Procedure Know the Criteria

Who will review appeals? Hearing Examiner Board of County Commissioners Circuit Court District Court of Appeals

The Appeal Process Identify the Procedure Know the Criteria

When must the appeal be filed? Administrative Code-established criteria Procedural rule-established criteria

What must the decision be based on? Code-established criteria Case law-established criteria

What is the standard of review for certiorari review? Was procedural due process afforded? Does the decision depart from the essential requirements of the law? Is the decision supported by competent, substantial evidence?

What is due process? Fair notice A meaningful opportunity to be heard

THE WRONG LAW MUST BE APPLIED What does it mean to depart from the essential requirements of law? Something more than simple legal error Something more than simply disagreeing with interpretation of local government Something more than applying the correct law incorrectly THE WRONG LAW MUST BE APPLIED

What is competent, substantial evidence? There must be evidence in the record to support the County/City decision The court cannot reweigh the evidence, draw different inferences, or substitute its judgment for the County/City’s One witness is sufficient

What happens in a successful appeal? The County/City decision is reversed and the case is remanded for reconsideration by the County/City Though the decision is reversed, the court cannot tell the County/City what its decision must be The dispute is in the same state as before order entered

What happens when you are not successful? Second-tier certiorari to the Second District Court of Appeal Extremely narrow standard of review: Did the circuit court afford procedural due process? Did the circuit court depart from the essential requirements of the law?

EXAMPLES © 2019 Roetzel & Andress LPA

EXAMPLE – Lee County Variances REVIEW CRITERIA: There exists an exceptional condition of the property that Creates a hardship Is not the result of actions of the property owner The variance is Minimum variance that will relieve the unreasonable burden Not injurious to the neighborhood/detrimental to the public welfare Consistent with Lee Plan APPEAL Circuit Court APPROVE Hearing Examiner RECOMMEND Staff REVIEW CRITERIA: Was procedural due process afforded? Does the decision depart from the essential requirements of the law? Is the decision supported by competent, substantial evidence?

EXAMPLE – Collier County Variances REVIEW CRITERIA: There exists special conditions and circumstances peculiar to the location/ size/characteristics that Are not the result of action of the property owner Create unnecessary/undue hardship The variance is Minimum variance that will allow reasonable use and promote health, safety or welfare and will not confer any special privilege Not injurious to the neighborhood/ detrimental to the public welfare Consistent with LDC and GMP There are natural or physically induced conditions that ameliorate the goals/objectives of the regulation REVIEW CRITERIA: There exists special conditions and circumstances peculiar to the location/ size/characteristics that Are not the result of action of the property owner Create unnecessary/undue hardship The variance is Minimum variance that will allow reasonable use and promote health, safety or welfare and will not confer any special privilege Not injurious to the neighborhood/ detrimental to the public welfare Consistent with LDC and GMP There are natural or physically induced conditions that ameliorate the goals/objectives of the regulation APPEAL Circuit Court APPROVE Board of Zoning Appeals RECOMMEND Planning Commission Staff IF CONSISTENT WITH CRITERIA: Approve Approve with appropriate conditions and safeguards Provided that the variance does not permit a use that is not permitted by the LDC or any use expressly or by implication prohibited by the LDC REVIEW CRITERIA: Was procedural due process afforded? Does the decision depart from the essential requirements of the law? Is the decision supported by competent, substantial evidence?

EXAMPLE – Lee County Rezoning APPEAL Circuit Court APPROVE Board of County Commissioners RECOMMEND Hearing Examiner Staff REVIEW CRITERIA: Complies with the Lee Plan Meets Code or qualifies for deviations Compatible with existing and planned surrounding uses Provides sufficient access Addresses transportation facility impacts Does not adversely affect environmentally critical/sensitive areas and natural resources Served by urban services if located in a Future Urban area category REVIEW CRITERIA: Complies with the Lee Plan Meets Code or qualifies for deviations Compatible with existing and planned surrounding uses Provides sufficient access Addresses transportation facility impacts Does not adversely affect environmentally critical/sensitive areas and natural resources Served by urban services if located in a Future Urban area category IF CONSISTENT WITH CRITERIA: Approve Approve with conditions deemed necessary for protection of public health, safety, comfort, convenience or welfare Deny if it finds that maintaining existing zoning accomplishes legitimate public purpose and is not arbitrary, discriminatory, or unreasonable REVIEW CRITERIA: Was procedural due process afforded? Does the decision depart from the essential requirements of the law? Is the decision supported by competent, substantial evidence?

EXAMPLE – Collier County Rezoning APPEAL Circuit Court APPROVE Board of County Commissioners RECOMMEND Planning Commission INFORMATION ONLY Neighborhood Information Meeting REVIEW CRITERIA: Whether the proposed change will be consistent with the goals, objectives, and policies and future land use map and the elements of the Growth Management Plan. The existing land use pattern. The possible creation of an isolated district unrelated to adjacent and nearby districts. Whether existing district boundaries are illogically drawn in relation to existing conditions on the property proposed for change. Whether changed or changing conditions make the passage of the proposed amendment necessary. Whether the proposed change will adversely influence living conditions in the neighborhood. Whether the proposed change will create or excessively increase traffic congestion or create types of traffic deemed incompatible with surrounding land uses, because of peak volumes or projected types of vehicular traffic, including activity during construction phases of the development , or otherwise affect public safety. Whether the proposed change will create a drainage problem. REVIEW CRITERIA (cont’d) Whether it is impossible to find other adequate sites in the county for the proposed use in districts already permitting such use. The physical characteristics of the property and the degree of site alteration which would be required to make the property usable for any of the range of potential uses under the proposed zoning classification. The impact of development on the availability of adequate public facilities and services consistent with the levels of service adopted in the Collier County Growth Management Plan and as defined and implemented through the Collier County Adequate Public Facilities Ordinance [Code ch. 106, art. II], as amended. REVIEW CRITERIA (cont’d) Whether the proposed change will seriously reduce light and air to adjacent areas. Whether the proposed change will adversely affect property values in the adjacent area. Whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations. Whether the proposed change will constitute a grant of special privilege to an individual owner as contrasted with the public welfare. Whether there are substantial reasons why the property cannot be used in accordance with existing zoning. Whether the change suggested is out of scale with the needs of the neighborhood or the county. Staff REVIEW CRITERIA: Was procedural due process afforded? Does the decision depart from the essential requirements of the law? Is the decision supported by competent, substantial evidence?

Christopher D. Donovan Sarah E. Spector 850 Park Shore Drive, Third Floor Naples, FL 34103 239.213.3865 cdonovan@ralaw.com @AppellateGuru Sarah E. Spector 2320 First Street, Suite 1000 Ft. Myers, FL 33901 239.338.4213 sspector@ralaw.com