Land Use Law in Florida

W. Thomas Hawkins

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000394061
• Edition: 1
• Topic: Jura
• Subtopic: Umweltrecht

Land Use Law in Florida presents an in-depth analysis of land use law common to many states across the United States, using Florida cases and statutes as examples.

Florida case law is an important course of study for planners, as the state has its own legal framework that governs how people may use land, with regulation that has evolved to include state-directed urban and regional planning. The book addresses issues in a case format, including planning, land development regulation, property rights, real estate development and land use, transportation, and environmental regulation. Each chapter summarizes the rules that a reader should draw from the cases, making it useful as a reference for practicing professionals and as a teaching tool for planning students who do not have experience in reading law.

This text is invaluable for attorneys; professional planners; environmental, property rights, and neighborhood activists; and local government employees who need to understand the rules that govern how property owners may use land in Florida and around the country.

1 Introduction

This book presents a collection of significant concepts in land use law. I have written this book to be a useful tool for all of attorneys, professional planners, and students.

I have included cases from federal and Florida courts to present U.S. Constitutional issues, Florida common law, and Florida statutory issues. Although this text focuses on Florida land use law, most states have comparable laws. In every jurisdiction, always consult state and local government laws.

In addition to cases and explanatory materials, I have included hypothetical land use conflicts. I wrote these fact patterns to provide you with an opportunity to test your learning.

Florida has its own legal framework for regulating how people may use land. An ever-growing population, booming real estate development, and the lure of a beautiful-but-fragile environment have defined the Sunshine State for more than a century. These factors have led to constant change in Florida communities and to chronic concern about the repercussions of real estate development. The state and local governments have responded in part by creating a unique system to regulate and manage growth.

While this text focuses on land use regulation, Florida has also served as a laboratory for city design and development. From Henry Flagler’s railroad opening the Atlantic Coast to Walt Disney’s global tourist attraction, Florida’s industry has been the business of building itself.

Although the sixteenth-century establishment of St. Augustine seems distant from modern Florida, the city illustrates the relationship between real estate, land use regulation, and community. St. Augustine began as a planned community, designed according to the Laws of the Indies—rules prescribing the form of Spanish settlements in the Americas.¹ Land use rules determined St. Augustine’s original design, including its main square, streets, and building sites. Centuries later, people continue to live in the place shaped by those rules. This is the essence of land use regulation: rules combine with urban design and the business of real estate development to build the places people live, likely for generations to come.

In Florida, examples of the relationships between law, design, and business abound. For example, developer and politician George E. Merrick developed Coral Gables in 1921. His business venture failed, brought down by the cost of providing public infrastructure.² But Coral Gables has since become its own city and succeeded as an enduring community, beloved for its beauty.

Some Florida developers, pursuing short-term profit over a legacy of town-building, created zombie subdivisions.³ Local governments continue to struggle to provide public services to these subdivided but largely undeveloped tracts of land. Consider Lehigh Acres in Lee County, where 62,000 acres (or 97 square miles) of land subdivided in the 1950s and 1960s consists of single-family homesites remote from other land uses or urban services.⁴ It remains sparsely populated, a failure as a community even if initially profitable.

Other large-scale developments, such as the Arvida Corporation’s City of Weston, were successful business ventures and have become functioning cities that efficiently provide services to residents.⁵ But they are banal, lacking charm and vibrant public spaces.

In recent decades, perhaps learning from past mistakes, some Florida developers have refocused on designing and building complete communities. This movement, called the New Urbanism, sees many social, civic, and environmental problems as symptoms of poor urban design. Robert Davis, the developer of the new urban Seaside, helped begin this trend not just in Florida, but in the United States. Town planners Andres Duany and Elizabeth Plater-Zyberk designed Seaside and credit Davis with prioritizing place over profit.⁶ Yet Seaside and the surrounding developments it inspired have succeeded financially.

Land use law lies at the intersection of community needs and preferences for the character of communities, the real estate market, and private property rights. This is the field that determines how we will build and maintain the places in which people will live their lives for generations to come.

Consider a built place you love. This may be your childhood home. It may be an open space in the neighborhood where you work. It may be a civic space in a favorite city you have visited. In any case, real estate development built these places and a local government’s regulations undoubtedly impacted their character. Land use law matters because where and how we live matter.

Land use as a practice area

Generally, land use law is the field of law answering the question, “How may a person use this real property?” Land use law differs from real estate law in that real estate law answers the question, “Who owns this real property?” Land use has at least three characteristics that color the routine work of the land use practitioner: land use decisions are based in local government and politics; land use practice is interdisciplinary; and land use law regulates real estate development. This list is written from an attorney’s perspective, rather than from that of a professional planner. But planners should consider these characteristics to help them relate to a lawyer’s perspective on land use.

Land use is local government and local politics

Land use law is based in local government and local politics.⁷ This has two implications for the practice area. First, decision-makers are typically laypeople. The legislators adopting the ordinances with which land use practitioners work are local government officials—sometimes elected from a pool of just a few hundred registered voters.

Moreover, the decision-makers applying those rules to determine whether a property owner may take a certain action are often volunteers—serving on a board like an historic preservation board, a development review board, or a board of adjustment. A land use lawyer might corral the expert opinions of trained architects, planners, and engineers only to provide them to a layperson—like a neighborhood activist—who has no professional training that gives context to the information the attorney seeks to provide.

Second, because land use is political, the decision-makers—whether they admit it or not— pay attention to the identity of applicants and of parties opposed to applicants. Are people with opinions about a land use matter voters or donors to political campaigns? Does a particular developer have a good or bad track record? Is a neighborhood association opposed to a project also politically active, holding an influential candidate forum?

In local government, elected officials and applicants often have close personal relationships. And few elected officials or lay decision-makers will be as skilled at focusing on the relevant facts and the applicable law as are judges.

Land use practice is interdisciplinary

Land use practitioners work with professionals in many other disciplines. Land use lawyers and planners work together. And both work with architects, engineers, financiers, and environmental scientists. To succeed, a land use practitioner must be able to communicate with these other professionals about their areas of expertise.

Working collaboratively through an application process is likely to be a more valuable skill to a practicing land use attorney than prowess in civil litigation. Of course, this does not mean that a land use practitioner needs to be an expert in any other subject matter. Still, a working knowledge of the issues with which these experts deal and how they approach problems is essential. A land use practitioner must understand enough about these related fields to know what questions to ask and to appreciate what he or she doesn’t know.

Land use law regulates real estate development

Land use law regulates the business of real estate development. As a result, time matters. If a requested development approval is litigated, rather than reaching final disposition quickly before a local government, the applicant may lose because of the delay—regardless of the ultimate outcome.

At least two reasons make timely approval significant. One reason is that markets change over time. Real estate developers formulate projects for the market at a specific point in time considering the prices at which they can sell or lease space. If a development project is delayed several years, other developers may fulfill that market demand. Because supply and demand are constantly in flux, undue delays can change the economic feasibility of a development proposal.

Another reason time matters is that keeping a potential real estate development in play costs money over time. Most real estate developers do not propose projects for land they own outright. Instead, developers and landowners are often separate parties.

When a developer does not own the property he or she seeks to develop, that developer will secure a contract with the owner of the real estate, giving the developer the option to purchase the property for a set period of time, pending development approval. Even when a developer does own land, that property is often encumbered with debt. In either case, the developer must pay over time to keep the land available for development.

Notes

• 1 Richard RuBino & Earl M. Starnes, Lessons Learned? The History of Planning in Florida 2–3 (Sentry Press, Inc. 2008).
• 2 Id. at 71.
• 3 “Zombie subdivision” is a particularly evocative planning term. The Florida Statutes refer to these developments by the more staid “antiquated subdivision.” Fla Stat. § 163.3164(5).
• 4 Sheridan v. Lee Cnty., Case No. 90-007791GM para. 49 (Fla. DOAH Jan. 27, 1993) (recommended order).
• 5 The History of the City of Weston, The City of Weston, FL, www.westonfl.org/about/city-history (last visited Aug. 4, 2020).
• 6 Andres Duany et al., Suburban Nation: The Rise of Sprawl and the Decline of the American Dream 113 (North Point Press 2000).
• 7 Cross Key Waterways v. Askew, 351 So. 2d 1062, 1065 (Fla. 1st DCA 1977) (acknowledging “[t]he primacy of local government jurisdiction in land development regulation”), aff’d, 372 So. 2d 913 (Fla. 1978).

Part I
How governments regulate land use

2 Nuisance

Nuisance is a common law cause of action that gives people the right to sue others over the use to which they put their land.¹ The general rule on nuisance is that any use of land which substantially and unreasonably disturbs a person in the free use, possession, or enjoyment of his or her property may be a nuisance.² Several limitations in the concept of nuisance, however, make it narrower in practice than the general rule implies.

Causation

Causation refers to the causal relationship between a defendant’s conduct and the harm to a plaintiff. Causation may limit liability for nuisance when the causal relationship is too tenuous. In the case of Shamhart v. Morrison Cafeteria Co., the majority opinion and that of the dissenting justice disagree on what is the true cause of the harm experienced by the plaintiff.

Florida Supreme Court
Shamhart v. Morrison Cafeteria Co.³
1947

ADAMS, Justice.

Morrison’s Cafeteria in West Palm Beach fronts west on Olive Street with an alley on the north side. One hundred eight feet to the south is appellant’s corner drug store with entrances on Olive Street and also on Datura Street. During the noon and evening meals, customers of the cafeteria form lines on the sidewalk which frequently result in most of the entrances to appellant’s drug store be...