Town of Ponce Inlet v. Pacetta, LLC

120 So. 3d 27 (Fla. 5th DCA 2013)

Bert J. Harris, Jr. Private Property Rights Protection Act

In the Pacetta case, a developer purchased riverfront property in the Town of Ponce Inlet with plans to construct a mixed-use development.  The proposed development was prohibited without a change to the Town's comprehensive development plan.  The developer engaged in a series of discussions with Town staff about the development, which left the developer believing that the Town would support the project and approve the necessary amendment to the comprehensive plan.  However, citizen opposition to the proposed development increased and the Town ultimately denied the developer's request to amend the comprehensive plan, which prevented the development from being approved.  The developer sued the Town alleging a Bert J. Harris claim through equitable estoppel.   

To prevail on the Bert J. Harris claim, the developer had to prove that (1)  some government action (2) inordinately burdened (3) a vested right to a specific use of the developer's property.   

To prevail on the equitable estoppel claim, the developer had to establish that (1) it relied in good faith (2) on some act or omission by the government (3) in making a substantial change in position or incurring extensive obligations or expenses related to the property in question, and  (4) that it would be unjust to take away that which the property owner had acquired based on such reliance.   

The Fifth District Court of Appeal held that the developer failed to establish it had a vested right in its property based on equitable estoppel against the Town of Ponce Inlet.  The Court held that at the time the developer purchased the property, it was fully aware that the Town's comprehensive plan expressly prohibited the type of development being proposed.  The developer, therefore, could not have relied in good faith on the assurances from Town staff that the comprehensive plan would be amended since those persons did not have the authority to unilaterally amend the plan.  The Court further held that granting a vested right to the developer based on assurances from town staff or officials would violate public policy in light of the requirement that there be public hearings and other government approvals prior to a comprehensive plan being amended.  For these reasons, the Court held that the Town was not liable to the developer under the Bert J. Harris Act.

Archstone Palmetto Park, LLC and City of Boca Raton v. Kathleen Kennedy, et al.

2014 WL 305086 (Fla. 4th DCA 2014)

Referenda on Development Orders

In the Archstone Case, the City of Boca Raton adopted an ordinance that  amended previously approved regulations for a downtown DRI project.  The ordinance constituted a "development order" under Florida law.  A citizens' group sought to repeal the ordinance, based on the City's charter which provided a process to repeal an ordinance by referendum.    However, the City's charter did not specifically state that referenda could be used to repeal a "development order".   

The City sued the citizens' group and asked the court for a declaration that it did not have to process the petition since Florida law prohibits referenda in regard to development orders.  The Trial Court denied the City's request and ordered the City to process the petition.

The Fourth District Court of Appeal however, held that the Trial Court was incorrect.  The appellate Court stated that a 2012 amendment to Section 163.3167(8), Florida Statutes, allowing referenda for certain comprehensive plan amendments, did not require the City to submit a development order to public referendum.  The appellate Court held that the 2012 amendment merely served to reaffirm the longstanding prohibition on referenda for development orders, and grandfathered the referendum process for certain comprehensive plan amendments in those local governments that had charter provisions in place as of June 1, 2011 specifically allowing such referenda.  The appellate Court held that a charter provision providing for a general referendum process, like the City of Boca Raton's, was not sufficient to fall under the grandfathered status contemplated by the 2012 amendment.  Therefore, the City of Boca Raton was not required to process the citizen's petition and place it before the voters in a referendum.

Town of Jupiter v. Byrd Family Trust

2014 WL 305124 (Fla. 4th DCA 2014)

Ability of Local Governments to Regulate Mangroves, and to Assess Attorney's Fees

Incurred During Code Enforcement Proceedings

In the Byrd case, the Byrd Family Trust removed 109 mangroves from its riverfront property, and filled the area with sand.  The work was done without a permit, and in violation of state law regarding mangrove protection.  The Town's code enforcement special magistrate issued an order finding that the Trust had violated the Town's Code of Ordinances and therefore, entered a fine in the amount of $15,000.00 for each mangrove removed for a total fine of $1,635,000.00.  The special magistrate also fined the Trust $15,000.00 for placement of sand on the property without a permit.  Finally, the special magistrate awarded the Town its attorney's fees and costs in prosecuting the code enforcement action.  The Town's award of attorney's fees was based on a Town ordinance specifically allowing the Town to recover fees for attorney and magistrate services provided during code enforcement cases.

127 So. 3d 869 (Fla. 3d DCA 2013)

Separation of Powers and Sovereign Immunity

In the Detournay case, homeowners and a homeowner's association sued the City of Coral Gables for declaratory and injunctive relief seeking to compel the City to enforce its building and zoning codes against a property owner that rented private yacht slips and moorings within the City.  The homeowners and homeowner's association alleged that the private yacht basin was being run in a manner that violated the City's building and zoning codes.  The Third District Court of Appeal held that the lawsuit should be dismissed.  The City had sovereign immunity based on the doctrine of separation of powers.  This means that the judicial branch must not interfere with the discretionary functions of the legislative and executive branches of government absent a violation of constitutional or statutory rights.  To hold otherwise would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violate the separation of powers doctrine.  The District Court concluded that the City's discretion to file, prosecute, abate, settle or voluntarily dismiss a building and zoning enforcement action was a purely executive function that will not be supervised by the courts.  Therefore, the City cannot be compelled by one private party to enforce its building and zoning laws against another private party.  The enforcement of building and zoning laws resides with the municipality for the purpose of protecting the health and safety of the public, not the personal or property interests of individual citizens.