Saturday, February 23, 2008

Despite the Growth Management Act, Corruption and Favoritism still alive in zoning and land use decisions in Florida

The GMA (Florida Growth Management Act, Fla. Stat. ch. 163.3161) establishes procedures for any changes that affect land uses in our State. These procedures establish proper-noticed public hearings whether it’s for a Comprehensive Plan amendment or a change in the Land Development Regulations (LDR’s) such as zoning. During these hearings, affected parties present their arguments in favor or opposition to a given project in front of the public officials presiding over the hearing (County Council, City Commission, etc.) who then decide whether to approve or deny the requested amendment.

Abuses occur when decisions are made on the basis of political influence or favoritism, on the basis of inadequate procedure, or by uninformed or corrupt government officials. The intent of the growth management system of Florida was to reduce the power of local governments over decision-making for comprehensive planning in order to maintain uniformity throughout the state and depart from the detrimental politically-charged decisions of the past.

A seminal case in Florida Land Use was the Snyder case decided by the Florida Supreme Court (Board of County Comm'rs of Brevard County v. Snyder, 627 So. 2d 469, 475 (Fla. 1993)). In Snyder, the Supreme Court elaborated quite eloquently on the intent of the GMA. Correcting abuses was one of the articulated factors driving the Snyder decision to establish quasi-judicial review in place of legislative review for certain land use transactions.

The GMA provides for judicial review of the local Board’s decisions when a party decides to challenge it. There are two broad groups of decisions: Legislative and Quasi-Judicial. As applied to land use, Legislative decisions are those that are policy setting, or that “make” laws which affect a large portion of the public. For example, the development of a municipalities’ Comprehensive Plan is a Legislative or Administrative order as it prescribes what the rule or requirement shall be with respect to transactions to be executed in the future. Quasi-Judicial actions, on the other hand, are the result of policy application rather than policy setting.

Rezoning actions are quasi-judicial since they have an impact on a limited number of persons or property owners where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing.

In a quasi-judicial hearing the local board must provide certain constitutional protections such as Due Process and the admittance of relevant evidence. In addition, the evaluation of the facts presented must be arrived under the strict scrutiny standard, much similar to a normal judicial hearing in front of a Court. Strict scrutiny arises from the necessity of strict compliance with the law being applied such as the Comp. Plan. It basically means “Follow the letter of the law”.

A second significant difference between the quasi-judicial and legislative review processes is the degree of deference granted by the courts to the decision-making body. To overturn legislative decisions, the court must determine that the basis for the decision was capricious or arbitrary and not even debatable. For quasi-judicial decisions, the court still defers to the judgment of the lower tribunal, but competent substantial evidence is required to preclude reversal. Florida adopted the fairly debatable standard in 1941; Snyder, 627 So. 2d at 472 (citing City of Miami Beach v. Ocean & Inland Co., 3 So. 2d 364, 367 (Fla. 1941).

Quoting from the Snyder Supreme Court Decision is a well articulated reasoning behind the GMA and in support of a tighter judicial scrutiny of local Board’s decisions:

Inhibited only by the loose judicial scrutiny afforded by the fairly debatable rule, local zoning systems developed in a markedly inconsistent manner. Many land use experts and practitioners have been critical of the local zoning system. Richard Babcock deplored the effect of "neighborhoodism" and rank political influence on the local decision-making process. Richard F. Babcock, The Zoning Game (1966). Mandelker and Tarlock recently stated that "zoning decisions are too often ad hoc, sloppy and self-serving decisions with well-defined adverse consequences without off-setting benefits."Daniel R. Mandelker and A. Dan Tarlock, Shifting the Presumption of Constitutionality in Land-Use Law, 24 Urb. Law. 1, 2 (1992).

Unfortunately, many local elected officials do not have the education, experience or even desire to abide by the statutes codified in the GMA and allow political forces and campaign donations to rule the decisions. They simply revert to the “old Florida ways” of doing whatever their patrons ask (especially the patrons that pay) and letting the judicial system - at a very expensive price of admission - sort the mistakes for the injured parties that object.

So, in spite of Snyder and other Supreme Court decisions, the end result is exactly the opposite of the intent of the GMA: abuse, favoritism, patronage and arbitrariness reflected in haphazard zoning and land use ordinances. There is a lot of truth to the saying that “justice is available to all... who can afford it” as only the well-heeled are able to afford the lawsuits required by the judicial system in order to enforce the GMA.

This is one of the strongest arguments to make violations of the GMA fall under the criminal code instead of the civil code. When a corrupt municipal official fails to exercise her duty to obey the law and abuses the powers vested in her to act in favor of a patron and provide undue benefits at the expense of other citizens, such conduct is closer to a criminal act than a civil tort since the official is acting under color of law. While there are Federal Regulations that address such conduct (18 U.S.C. §242, 42 U.S.C. §§1981, 1982, 1983, not to mention the Fifth and Fourteenth Amendments of the US Constitution), Florida has few (such as Fla. Stat. §112.313(6) Misuse of Public Position). Under the criminal code, violators of the GMA would be prosecuted by the State’s Attorney just like any other crimes.

A number of internet sites contain thorough and helpful information about all aspects of comprehensive planning and land development regulation in Florida. One of the best is by 1000 Friends of Florida at . Another important and informative website is maintained by Florida Department of Community Affairs. The Municipal Ordinances and Land Development Codes for most counties and municipalities in Florida can be obtained here. Lastly, Mary Dawson’s The Best Laid Plans: The Rise and Fall of Growth Management in Florida , published by the Journal of Land Use and Environmental Law, is a well written and informative piece on the failings of the current system.

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