Zoning Law in Florida

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Ralf@RalfBrookesAttorney.com 

As a lawyer, one of the things I’m often asked is

"How on earth did you get started with all this?” For as long as I can remember, I've loved to share my passions, and points of view with others around me. Working in Florida on land use, zoning and environmental law issues close to my heart has added immense value to my life, and I love having the chance to share my passions and wanderings with my loyal clients and readers. Explore my site, and enjoy.

 

Getting Started- Rezonings

Can a Rezoning be Denied? - What is the correct Legal Standard for a Rezoning?

About Subtitle

The Florida Supreme Court established a two-step standard for review of a rezoning application by a local government board in the case called Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993):  


“we hold that [1] a landowner seeking to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance. [2] At this point, the burden shifts to the governmental board to demonstrate that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose.”  


Under the standard for rezonings, a local government can deny a rezoning request if there is any legitimate public purpose supporting the denial.


Under the first prong of the analysis Section 163.3194(3), Florida Statutes (1991), explains consistency as follows:

“A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.”


But the Florida Supreme Court recognized and explained that a “comprehensive plan only establishes a long-range maximum limit on the possible intensity of land use; a plan does not simultaneously establish an immediate minimum limit on the possible intensity of land use. The present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan. Even where a denial of a zoning application would be inconsistent with the plan, the local government should have the discretion to decide that the maximum development density should not be allowed provided the governmental body approves some development that is consistent with the plan and the government's decision is supported by substantial, competent evidence.”


This leads to the second prong of the analysis, and what is a legitimate public purpose? A “legitimate public purpose” can include general public health, safety and welfare issues such as traffic safety issues, neighborhood compatibility, burdens on infrastructure, impacts to the local environment, and impacts to the public health and welfare, but does not include a denial based on race, sex, religion or national origin of the applicant or any other distinction prohibited by the constitution. 


The Florida Supreme Court also explained that “the local government will have the burden of showing that the refusal to rezone the property is not arbitrary, discriminatory, or unreasonable. If the board carries its burden, the application should be denied.”

 

What is competent substantial evidence?

This related question has also by answered by the Florida Supreme Court as “the evidence relied upon the sustain the ultimate finding [for denial or approval] should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” De Groot v. Sheffield, 95 So.2d 912 (Fla., 1957). Under this standard, even layperson, or non-expert testimony in a zoning case is perfectly permissible and can constitutes substantial competent evidence, if it is fact-based. This can include eyewitness observation testimony about relevants facts and documentary evidence including photographs, aerials and maps. However, “mere generalized statements of opposition are to be disregarded, but fact-based testimony is not to be disregarded and can be competent, substantial evidence.” Metropolitan Dade County v. Blumenthal 675 S.2d 598 (Fla. Dist. App. 3d 1996). 


That said, it is best to bring experts in the subject matter to testify at the hearing - look for experts with college degrees, professional experience and any professional aaccredation in the field of study such as American Institute of Certified Planners (AICP), Professional Geologists, (P.G.), Professional Wetland Scientists (PWS), etc... 

And make arrangements to bring a CERTIFIED COURT REPORTER to ensure that the record you create can be reviewed by the Court. It is less expensive in the long run to have a court reporter attend the hearing live

 

~ ask your question directly Ralf@RalfBrookesAttorney.com - reach me by cellphone at (239) 910-5464 any time

FAQ

 

What is The Difference between a Legislative and a Quasi-Judicial and why does it matter?

Land use lawyers and planners in Florida sometimes confuse our clients by using unusual terms or by using familiar terms in unfamiliar ways. We have prepared this guide for our clients to de-mystify Florida’s land use processes. Since the early 1990s, there have been two types of land use decisions made by local governments in Florida.

1. Legislative decisions. A legislative decision is one in which a law is made, for example amending a federal or state statute or a local ordinance or code. The Governing Body of a county or municipality has broad decision-making latitude in legislative matters, which include the adoption and amendment of the Comprehensive Plan and Land Development Code (LDC). A local government can approve or deny a proposed legislative action or a comprehensive plan amendment for any legitimate basis. Comprehensive Plan amendments are always legislative actions, but they must meet minimum state statutory requirements set forth in Chapter 163, Florida Statutes. In legislative actions (comprehensive plan amendments) it’s OK for constituents to speak directly with their elected officials. It’s also OK to bring signed petitions to the hearing and a legislative action can be denied without competent substantial evidence based merely on any legitimate public purpose or concern.

2. Quasi-judicial decisions. Rezoning cases are quasi-judicial decisions which must be consistent with the Comprehensive Plan and LDC and they must be supported by competent, substantial evidence. Ex parte communications (from one side or party only) are discouraged, but sometimes do occur. An elected (e.g. city councilmember) or appointed (e.g. planning board) official who meets with an applicant or neighbors outside of the public hearing must disclose any ex parte communications that may have occurred with anyone outside the hearing and what was said (i.e., exactly what was discussed with whom and when) on the record prior to public input in the quasi-judicial hearing.

The distinction between legislative and quasi-judicial is nuanced but important, and it can be quite confusing at times, especially if you came from a state or country other than Florida.

What is a legislative decision

When Congress or the State Legislature pass a law, and it is signed by the President or Governor, it is called a statute, and those statutes are codified into multivolume sets with names like the US Code or Florida Statutes. In Florida, when the local Governing Body, which is usually called the Board of County Commissioners or the City Council, passes a legislative matter it is usually called an ordinance . Ordinances are codified into books that are typically called the Code of Ordinances, which sometimes has a companion volume called the Land Development Code. A legislative decision is one in which the Governing Body has broad decision-making latitude. As long as a legislative act has some conceivable rational basis, it will be upheld on appeal. In Florida, when local governments adopt ordinances they must provide an opportunity for public comment, and cannot adopt an ordinance that has no rational basis (i.e., the Governing Body cannot act in an arbitrary or capricious manner).

What is a Quasi-judicial decision?

The purpose of a quasi-judicial hearing is to make a decision or a recommendation to a Governing Body. As the term implies, a quasi-judicial proceeding is similar to a court hearing in that the decision maker—which may be one person or a citizen board-- will compare the application for a proposed land use change, such as a rezoning, with the contents of the duly-adopted Comprehensive Plan (especially the FLUM and the GOPs) and also with the Land Development Code (LDC) requirements that are applicable to the subject property. The action sought by the applicant must comply with those duly-adopted legislative requirements.

When you participate in a quasi-judicial hearing, you appear as a sworn witness. Every person who presents testimony will be placed under oath to tell the truth. The examination and cross examination of witnesses is allowed. There is a distinction between expert witnesses, who may render professional expert opinions, and citizen testimony which can be competent substantial evidence if it is fact-based (i.e. relies on maps, aerials, personal factual observations, data, etc.). Don’t be surprised to see a developer bring a court reporter to the hearing. You or your group may want to hire your own court reporter if you think there is a possibility that your case is headed to circuit court to challenge an adverse decision.

What is a Comprehensive Plan in Florida?

Since 1985, Florida law has required that each local government (county or municipal) adopt a comprehensive plan by ordinance, as a legislative act. The Governing Body adopts and updates the Comprehensive Plan at least every seven years through a process called the Evaluation and Appraisal Report (EAR). The comprehensive plan includes a Future Land Use Element (FLUE) and Map (FLUM), including Goals Objectives and Policies (colloquially referred to as “GOPs”), and Levels of Service (LOS) standards for infrastructure and services. Collectively, these are called the Comprehensive Plan. In most states, Comprehensive Plans are advisory in nature. In Florida, comprehensive plans have the force of law, and amendments to them can be enforced in state courts, provided the appellant (the person or group challenging the local government action) has the will, the resources, and the lawyers to bring the case through the whole process.

Can a plan amendment be denied?

The adopted Future Land Use Map, the GOPs, and the LOS can be amended by the Governing Body. These amendments are often called LUPAs (land use plan amendments) or CPAs (comprehensive plan amendments). They are advertised in local newspapers and there are signs posted at the property announcing that there will be hearings, assuming that the amendment is site-specific. Sometimes the applicant for the plan amendment is the local government itself—they often do that especially if there are multiple property owners, for example—but usually the applicant is the property owner or her agent. Applicants almost always want more density or intensity and only rarely ask to "down zone" their property (e.g. dwellings per acre) or intensity (e.g. industrial or commercial Floor Area Ratio). In Florida, plan amendments are always legislative in nature and can be denied for any legitimate public purpose supported by any possible rational basis.

What is the Procedure for Adoption of Plan Amendments.

When you participate in a legislative land use hearing, you are appearing as a citizen/ property owner/ taxpayer, advising your elected or appointed officials how you would like things to be in your neighborhood. The Local Planning Agency (LPA), which usually has a name like the Planning Board or the Planning and Zoning Commission, must conduct at least one public hearing , followed by one or two hearings by the Governing Body. Because plan amendments are legislative, the door is wide open to public participation—all parties, whether in favor or opposition, are free to persuade their officials through petitions, face to face contact, letters and emails, yard signs, t-shirts, and other hortatory activities. Remember that personal contacts with members of the Governing Body or the Local Planning Agency are known as ex parte contacts, and they must be disclosed at the time of hearing, so don’t expect your elected officials to keep your meeting a secret, and don’t let them fail to disclose the full extent of their past communications with the other side.

 

Getting Started

The Roots

For over 50 years, I have enjoyed the environment. And for over 25 years based on my education, I have served as a useful source of legal information to those seeking inspiration, help, or advice. In 1998, I finally decided to go out on my own to help Florida's citizens and environment and be intentional about it. I started following my passions, my thoughts and dedicated my professional life to protecting Florida's environment. I founded my law practice, Ralf Brookes Attorney with a mission to give others the help and assistance they need to be most effective in reaching our common goals and objectives and protect the Florida that I love and want my children to enjoy for generations.

 

What is the purpose of a quasi-judicial hearing

The purpose of a quasi-judicial hearing is to make a decision or a recommendation to a Governing Body. As the term implies, a quasi-judicial proceeding is similar to a court hearing in that the decision maker—which may be one person or a citizen board-- will compare the application for a proposed land use change, such as a rezoning, with the contents of the duly-adopted Comprehensive Plan (especially the FLUM and the GOPs) and also with the Land Development Code (LDC) requirements that are applicable to the subject property. The action sought by the applicant must comply with those duly-adopted legislative requirements.

Where do I find my local zoning code?
How do I effectively participate in a quasi-judicial hearing?

FIrst go to https://library.municode.com/ to look up the zoning rules in your particular jurisdiction and then look up the local Comprehensive Plan, which also has the force of law in Florida.

Amending the Code or the Comp Plan is a legislative decision, but applying the Code and the Comp Plan is a QUASI-JUDICIAL decision by local government. 


Different standards apply to legislative v quasijudicial hearings.

When you participate in a quasi-judicial hearing, you appear as a sworn witness. Every person who presents testimony will be placed under oath to tell the truth. The examination and cross examination of witnesses is allowed. There is a distinction between expert witnesses, who may render professional expert opinions, and citizen testimony which can be competent substantial evidence if it is fact-based (i.e. relies on maps, aerials, personal factual observations, data, etc.). Don’t be surprised to see a developer bring a court reporter to the hearing. You or your group may want to hire your own court reporter if you think there is a possibility that your case is headed to circuit court to challenge an adverse decision.

Rezonings? Planned Dev?

When most people say ‘rezoning’, they are speaking of a host of zoning changes, which may be called rezoning (e.g. from R-1 to R-3), Planned Unit Development (PUD), Planned Development Project (PDP), or other quasi-judicial “development orders” including conditional uses, special exceptions, variances, deviations, subdivision plats, replats and building permits . All rezonings and development orders shall be consistent with the comprehensive plan. (For Example—if the Future Land Use Map designates a property as Low Density Residential, which specifically prohibits auto body shops, and the applicant wants to develop her parcel for an auto body shop, you can’t simply apply for a C-2 zoning which allows auto body shops; the applicant must first apply for and receive legislative approval of a FLUM amendment to a land use designation that allows her proposed use.)

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How are rezonings heard?

The applicant (or his attorney and design professional) prepares a formal application seeking to justify the request. This application is a matter of public record. Rezonings are heard and approved by the City Council or County Commission and their first hearing is usually before an LPA advisory body, e.g. a citizen planning and zoning board, which will make a recommendation, but there is a growing trend to delegate this task to hearing examiners (e.g., Lee County and Cape Coral). The citizen board or hearing examiner conducts a hearing to decide whether the rezoning is consistent with the comprehensive plan or whether there is a legitimate public purpose to deny the rezoning, and whether to recommend approval, approval with conditions, or denial to the Governing Body, which will conduct its own hearing and make the final decision.

what is the staff report?

The local government (the Planning Department with help from other agencies, such as public works, utilities, and the staff of the school district) prepares a staff report, which is one of the most important documents on the record. The staff report is the best place to start your review of the case and preparation for hearing. The staff report should describe the Comprehensive Plan’s FLUM designation and zoning classification and that of the surrounding existing and future uses. The staff report should identify the LDC sections that are applicable to the case and it should state which Comprehensive Plan GOPs support the application and which do not.

Valuable as the staff report may be, you should study the staff report with skepticism and peruse the Comprehensive Plan and LDC for errors and omissions. The staff report often proposes specific findings of fact about the case and may or may not recommend either approval, approval with conditions, or denial, or give reasons supporting each such potential outcome. When staff does not make a professional recommendation, you might want to ask them on the record to justify their omission. If staff made a recommendation, and you reach a different conclusion than staff did, you may want to propose your alternate findings of fact and conclusions supporting a denial.

What happens at the Quasi-judicial hearing?

At quasi-judicial public hearings, the staff, usually a professional planner, makes a presentation restating the contents of the staff report and answering specific questions asked by the decision maker. The staff report and staff presentation should be based upon the comprehensive plan and LDC, including any findings of fact, conditions of approval, recommendations, reasons for denial or approval and any discussion of alternatives. The applicant, his attorney, and his experts (planners, engineers, biologists, geologists, archaeologists, economists, and other people who might strengthen the case) will present their case.

if there is organized opposition, which are sometimes called intervenors or third parties or objectors, they are given an opportunity to present their arguments. They may introduce their own evidence into the record, and may bring their own attorney or experts. The public is then allowed to speak, and typically gets between two and five minutes per person, although organized groups may sometimes be granted more time depending on the City or County procedures or policies, which vary widely. Finally, public input is closed and the deciding body or hearing examiner will discuss or deliberate and has the discretion to ask any follow up questions from the applicant, staff or participants.

 

Should I bring a Court Reporter?

YES please make arrangements to bring a CERTIFIED COURT REPORTER to ensure that the record you create can be reviewed by the Court. It is less expensive in the long run to have a court reporter attend the hearing live because many court reporters will charge more to transcript a video -meeting or audiotape (if they will agree to prepare a transcript at all) and accuracy may be compromised. Court reporters can be found near courthouses or online near every city in Florida.

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Ralf, how and why did you started representing neighborhood organizations and environmental groups?

I believe you must bring your whole self to the table if you want to thrive in today’s crazy world; your personality, your sense of humor, and most importantly, your heart. All of these elements brought me to found my own law practice working on Zoning Issues in Florida back in 2000. Since then, my practice has been thriving, and has quickly gained a loyal following. Most importantly, I enjoy helping my clients navigate these complex legal procedures and issues.  I invite you to browse my site, learn about my passions, and explore what excites and interests you as well.

 

What happens after the local govt decision? ~it depends on what type of application was filed and approved and how it was approved or denied.

How do I challenge a Comp Plan Amendment after the City or County adopts it?

Appeals of legislative decisions on comprehensive plan amendments are handled by the State of Florida Division of Administrative Hearings. An Administrative Law Judge will be sent from Tallahassee to hear the case. These appeals are tough to win because they are limited to challenges to the approval of plan amendments that do not meet minimum state requirements or internal consistency within comprehensive plans. In other words, you can’t win the appeal because the Governing Body made a dumb decision, but you can win if it is internally inconsistent or does not meet the most minimal of state requirements including (1) the lack of meaningful and predictable standards guiding development or (2) a policy that is not supported by data and analysis or (3) the amendment is internally inconsistent with the rest of the Comp Plan.

How do I challenge a quasi-judicial decision?

By b. Petition for Writ of Certiorari. Quasi-judicial decisions at the local level may be appealed to circuit court by what is called a petition for writ of certiorari seeking judicial review, and must be filed within 30 days. A local circuit court judge will review the record on appeal, including the transcript of hearing testimony. The evidence will be limited to the existing record and to arguments raised and preserved in a certified court reporter’s transcript of the public hearing(s). The judge may consider violations of due process, violations of the Land Development Code, and decisions that are not supported by competent substantial evidence applying Florida case law.

How do I challenge a development that is not consistent with the Comp Plan?

Challenge to quasi-judicial development orders for inconsistency with comprehensive plan may be appealed to circuit court. These appeals must be filed within 30 days in circuit court. The circuit court judge will set the case for trial, and the parties may take depositions, send questions and requests for documents and introduce new evidence in a judicial trial that is conducted with experts, depositions, and rules of evidence applying the standard of strict scrutiny to the issue of whether the “development order” is consistent with the comprehensive plan.

 

Florida Variance Law

 

What is a Variance in Florida?

A variance is, generally, permission for a landowner to go outside the limits of the zoning code, and to build something which would otherwise be illegal under the terms of the zoning code or land development regulations.

The reason or rationale behind the law allowing variances at all is that in some situations, the literal application of the zoning code would create such a "hardship", that it would not allow any use of certain parcels of property whatsoever.

Without the flexibility to allow some reasonable use of the property, such totally prohibitive zoning would constitute inverse condemnation, subjecting the zoning authority to liability for a "taking". Askew v. Gables-by-the-Sea, Inc., 333 So.2d 56 (1 DCA 1976). Thus, the legal justifications for variances, and the threshold criteria for determination of a "taking", are closely related. (See, below, criteria for granting variances, when is it a taking not to allow a variance).

A variance is sometimes mistakenly believed to be simply a tool for allowing a more intense use than would otherwise be allowed. As such, it needs to be distinguished from a special exception or conditional use.

A "special exception" or conditional use is specifically authorized in that zone, but will be allowed only if specific, listed criteria for that special exception or conditional use are met. A variance is specifically prohibited in that zone, but will be allowed only if necessary to prevent a "taking", i.e., if no authorized use is reasonably possible in its place.

Boards of adjustment have sometimes been unclear on this distinction, granting variances as a convenient expedient to avoiding the zoning and land development regulations. The criteria for obtaining variances are theoretically very strict, and the grounds for overturning illegal variances relatively easy to prove if sufficient facts and discussion of a legal hardship is not placed in the record.

An Applicant's variance request must be reviewed on its own merits, rather than on the basis of previously approved variances in the jurisdiction. See City of Jacksonville v. Taylor, 721 So.2d 1212 (Fla. 1st DCA 1998). Previously issued variances do not establish controlling precedent or constitute a basis to sustain other variance applications.

What are Criteria for Granting Variances in Fla?

Ordinances authorizing variances may be worded in different ways, and you should always read your specific language carefully. The standards must be definite, City of Miami v. Save Brickell Ave., 426 So.2d 1100 (3 DCA 1983), and the criteria must be mandatory, and not permissive (i.e., "shall consider criteria" means "must comply with criteria"), id.; Drexel v. City of Miami Beach, 64 So.2d 317 (Fla. 1953).

In 1985, local governments were given express authority to adopt variance criteria in their codes (most City’s and County’s adopted codifications of the existing law of variances with slight modifications in each locality). The repeal and replacement of Florida’s standard zoning enabling act in 1985 when Florida’s Growth Management Act of 1985 was adopted did not diminish or substantially change the authority of local government or Florida law regarding variances, in fact previous Florida Law was codified in many local governments by ordinance. Both before and after 1985, the courts have followed long-established Florida law that a variance cannot be granted for self-created actions – and this requirement is codified in most city and county codes in Florida. Even after 1985, the courts have been very strict in their review of the hardship required to obtain a variance.

Generally, a variance is authorized if due to circumstances unique to the applicant's property itself and not shared by other property in the area, there exists an undue and unnecessary hardship created by the zoning regulations

When is a Variance to depart from the Code legal?

1. The hardship cannot have been self-created.

The hardship criteria found in variance provisions has a long line of cases and has been strictly construed by the courts. Josephson v. Autrey, 96 So.2d 784 (Fla. 1957).

The criteria has been interpreted to mean three things:

a. A mere economic disadvantage due to the owner's preference as to what he would like to do with the property is not sufficient to constitute a hardship entitling the owner to a variance. Burger King v. Metropolitan Dade County, 349 So.2d 210 (3 DCA 1977); Metropolitan Dade County v. Reineng, 399 So.2d 379 (3 DCA 1981); Nance, supra; Crossroads Lounge v. City of Miami, 195 So.2d 232 (DCA 1967). If, however, the only allowable uses are economically impossible, then a variance would be allowed. Nance II.

b. Neither purchase of property with zoning restrictions on it, nor reliance that zoning will not change, will constitute a hardship. Friedland v. Hollywood, 130 So.2d 306 (DCA 1961); Elwyn v. Miami, 113 So.2d 849 (3 DCA 1959).

c. If a purchaser buys land with a condition creating a hardship upon it, the owner is only entitled to such variance as his predecessor in title was entitled. If the owner participated in an affirmative act which created the hardship (such as by purchasing only a substandard piece of a larger lot), then the hardship should be ruled self-created. Coral Gables v. Geary, 383 So.2d 1127 (3 DCA 1980).

The requirement that a variance hardship cannot be self-created is required by most codes and Florida case law. In Re Kellogg, 197 F. 3rd 1116, 1121 (11th Cir. 1999). Josephson v. Autrey, 96 So.2d 784 (Fla. 1957) (superceded by statute on other grounds in Grace v. Town of Palm Beach 656 So.2d 945 (Fla. DCA 1995); Town of Ponce Inlet v Rancourt, 627 So.2d 586, 588 (Fla. DCA 1993).

Case law, as well as the Land Development Regulations control the degree of showing needed to support the approval of a variance from the express requirements of local regulations. The days of the “weeping variance” have been replaced by strict interpretation of what is required to show entitlement to a variance from local Code provisions under the case law. Town of Indialantic v. Nance, 400 So.2d 37 (5 DCA 1981), affd. 419 So.2d 1041; appealed again at 485 So.2d 1318 (5 DCA 1986), rev. den. 494 So.2d 1152.

Post 1985, the First District Court of Appeals in City of Jacksonville v. Taylor, 721 So.2d 1212 (Fla. 1st DCA 1998) Bernard v. Town Council of Palm Beach, 569 So.2d 853 (Fla. 4th DCA, 1990); Metropolitan Dade County v. Betancourt, 559 So. 2d 1237; Town of Indiatlantic v. Nance, 485 So.2d 1318 (Fla. 5th DCA 1986), and Town of Indiatlantic v. Nance (“Nance I”), 400 So.2d 2137 (Fla. 5th DCA 1981); Maturo v. City of Coral Gables, 619 So.2d 455 (Fla. 3rd DCA 1993); Herrara v. City of Miami, 600 So.2d 561 (Fla 3rd DCA 1992) rev. denied 613 So.2d 2 (Fla. 3rd DCA 1992). In Re Kellogg, 197 F. 3d 1116, 1121 (11th Cir. 1999).

Pre 1985 cases had similar holdings and include Blount v. City of Coral Gables, 312 So. 2d 208 (Fla. 3rd DCA 1975) (“Nor are the Blounts entitled to a variance from the above zoning ordinance…as the hardship was self-created because they knew of the restricted zoning ordinance.”)(citing other Florida cases on this issue); Clarke v. Morgan, 327 So.2d 769 (Fla. 1975); Friedland v. Hollywood, 130 So.2d 306 (DCA 1961); Elwyn v. Miami, 113 So.2d 849 (3 DCA 1959); Coral Gables v. Geary, 383 So.2d 1127 (3 DCA 1980).

The purchase of property with zoning restrictions on the property will normally not constitute a hardship. Friedland v. Hollywood, 130 So.2d 306 (DCA 1961); Elwyn v. Miami, 113 So.2d 849 (3 DCA 1959). Namon v. DER 558 So. 2d 504 (Fla 3rd DCA 1990) and the cases cited therein address cases where property is purchased AFTER adoption of prohibitory regulations. The court in Namon recognized such pre-existing notice as applied to takings analysis in Florida cases, as follows:

“Appellants are deemed to purchase the property with constructive knowledge of the applicable land use regulations. Appellants bought unimproved property. A subjective expectation that the land could be developed is no more than an expectancy and does not translate into a vested right to develop the subject property. See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1382, 1383 (Fla.), cert. denied sub nom. Taylor v. Graham, 454 U.S. 1083, 102 S. Ct. 640, 70 L. Ed. 2d 618 (1981)

'…[a]n owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which [injures] the rights of others." Namon at 505, (original citation omitted) see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S. Ct. 2862, 2874, 81 L.E.2d 815, 834 (1984).

"A 'reasonable investment-backed expectation' must be more than a 'unilateral expectation or an abstract need'"; Namon citing Claridge v. New Hampshire Wetlands Board, 125 N.H. 745, 485 A.2d 287, 291 (1984)

"A person who purchases land with notice of statutory impediments to the right to develop that land can justify few, if any, legitimate investment-backed expectations of development rights which rise to the level of constitutionally protected property rights"; cf. Elwyn v. City of Miami, 113 So.2d 849, 852 (Fla. 3d DCA) "One who purchases property while it is in a certain known zoning classification, ordinarily will not be heard to claim as a hardship a factor or factors which existed at the time he acquired the property.", cert. denied, 116 849 (Fla. 1959).

Case law also indicates that a mere economic “disadvantage” or the owner's mere preference as to what he would like to do with the property is not sufficient to constitute a hardship entitling the owner to a variance. Burger King v. Metropolitan Dade County, 349 So.2d 210 (3 DCA 1977); Metropolitan Dade County v. Reineng, 399 So.2d 379 (3 DCA 1981); Crossroads Lounge v. City of Miami, 195 So.2d 232 (DCA 1967).

Neither purchase of property with zoning restrictions on it, nor reliance that zoning will not change, will constitute a hardship. Friedland v. Hollywood, 130 So.2d 306 (DCA 1961); Elwyn v. Miami, 113 So.2d 849 (3 DCA 1959).

If the owner participated in an affirmative act which created the hardship (such as by purchasing a substandard size lot), then the hardship should be ruled self-created. Coral Gables v. Geary, 383 So.2d 1127 (3 DCA 1980).


2. Consistency with neighborhood and scheme of regulations.

Granting the variance must not adversely affect the zoning scheme as a whole. Granting of a variance is illegal, and beyond the authority of any local administrative body, where the proposed variance is not shown to be in harmony with, and not "in derogation of the spirit, intent, purpose, or general plan of [the zoning] regulations." Troup v. Bird, 53 So.2d 717 (Fla. 1951).

"A variance should not be granted where
the use to be authorized thereby will
alter the essential character of the
locality, or interfere with the zoning
plan for the area and with rights of
owners of other property."

Elwyn v. Cityof Miami, 113 So.2d 849 (Fla. 3rd DCA 1959).

3. No reasonable legal use can be made of the property without the variance.

Some cases go so far as to say no variance can be granted if the property can still be used without the variance. This approach incorporates, to some extent, the law of taking of property without just compensation, i.e., a variance can be granted and will not be overturned if no other reasonable use can be made of the property without a variance.

"The requisite hardship may not be found unless there is a showing that under present zoning, no reasonable use can be made of the property." Thompson v. Planning Commission, 464 So.2d 1231 (1 DCA 1985). Herrera v. Miami, 600 So.2d 561 (3DCA 1992).

The hardship must be such that it "renders it virtually impossible to use that land for the purpose or in the manner for which it is zoned." Hemisphere Equity v. Key Biscayne, 369 So.2d 996 (3 DCA 1979).

It is the land, and not the nature of the project, which must be unique and create a hardship. Nance, supra; Ft. Lauderdale v. Nash, 425 So.2d 578 (4 DCA 1982) (many other common violations in the neighborhood do not constitute a hardship); City of Miami v. Franklin Leslie, 179 So.2d 622 (3 DCA 1965).

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"I work with clients on an individualized basis to provide:
as-needed
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Ralf Brookes Attorney is Board Certified in City, County, Local Government Law by The Florida Bar

Representing public interest groups; not-for-profits organizations; homeowners organizations; sustainable, green businesses and development clients with community vision; public and private sector clients; and local governments.

Ralf Brookes, Attorney. 1998-present.

Local government law, land use and environmental law.

Representing local governments, public and private sector clients, public interest groups and not-for-profit organizations.

Prepare and present to local city councils, county commissions and boards, to assist you with:

legal review of applications,

litigate approvals and denials,

prepare, challenge or defend ordinances, land development regulations, comprehensive plan amendments, settlements, development agreements,

local, state and federal agency permits, approvals,

administrative appeals and proceedings

challenges and appeals in state and federal courts.



COUNTY ATTORNEY EXPERIENCE:

Monroe County (the “Florida Keys”) - Land Use Litigation Counsel (1992-1998) Representing Monroe County Florida in land use litigation in state and federal courts, serve as counsel for Growth Management Division, counsel for Planning Department, Planning Commission and Code Enforcement; prepared and defended vacation rental ordinance, noise ordinances, resolutions and land development regulations, development agreements, comprehensive plan amendments, defended Monroe County in state and federal court.


Sarasota County Assistant County Attorney (1990 – 1992) Advise County Attorney, Board of County Commissioners of Sarasota County; Planning Commission, Planning, Natural Resources, Code Enforcement, Solid Waste Departments, interagency and interlocal agreements; established Pollution Control Trust Fund.


MUNICIPAL/CITY ATTORNEY EXPERIENCE:



City of St Pete Beach, Florida (Pinellas County, population 10,086) (City Attorney 2007-2008):
City of Bradenton Beach Florida, (Manatee County, population 1,536) 2004 – 2009
Town of Yankeetown, Florida, (Levy County, population 760) 2006 – present


As City/Town Attorney. Meet with and advise City Manager and Departments; Litigation, Comprehensive Plan Amendments, Land Development Code Amendments and review of development application, variances, cell towers, planned developments, rezonings, comp plan amendments ordinances, contracts, government and public works projects.



MEDIATOR/ARBITRATOR/ALTERNATIVE DISPUTE RESOLUTION



Circuit Civil Court Mediator - Florida Supreme Court Certified
Florida Court Appointed Arbitrator – Florida Supreme Court Approved Training
Special Magistrate/Master, Fla. Stat. 70.51 Land Use & Dispute Resolution Act: Alternative dispute resolution process for land use applications. (e.g., Village of Islamorada Florida)


BUSINESS MANAGEMENT EXPERIENCE:



BUSINESS MANAGEMENT CONSULTANT & ANALYST: 1998 –2000

Senior Consultant & Analyst Business Management–Cambridge Management Consulting (Celerant Consulting ). Delivered measurable improvements in Operations and Maintenance systems to deliver sustainable measurable results of $2.7 to 3.5 million dollars in annual client savings and increased profits. Identify and implement systems, reporting and management procedures for sustainable continual improvement. Texas, NJ, La, Delaware; Manuf. Facilities (1000+ workers); Corp. Headquarters (100+).



TEACHING:

Florida Gulf Coast University (FGCU) - Adjunct Professor Env Law 2005 - 2014. Masters of Public Administration Program: Environmental & Land Use Law PAD 5620.

University of Florida Law School – Env and Land Use Law Program, Practitioner in Residence 2013; Guest Lecturer: Env Law, Conservation Clinic and Water Law Clinic 2014, 2015, 2016



EDUCATION:

University of Florida –Law School Gainesville, Florida, Juris Doctorate (J.D. 1988)

Jessup’s Cup Moot Court Team;
UF Law Center for Governmental Responsibility Fellowship
University of Miami - Bachelor Science degree in Marine Sciences/Geology, Coral Gables, (B.S. 1985)



PROFESSIONAL:

Admitted to Florida Bar – 1988 (Over 22+ years as member in good standing)

Board Certified: City, County and Local Government Law by The Florida Bar – 2004 to date



Florida Federal Courts: Admitted Middle District Fla., Southern District Fla., Northern District Florida

Florida State Courts: Admitted all state circuits, all appellate district courts, Florida Supreme Court



The Florida Bar, Sections and Committees:

City, County and Local Government Law Section, active member in good standing present
Environmental and Land Use Law Section (ELULS), Executive Council, 1993-2001, active member in good standing through present
Administrative Law Section Executive Council, 1991- 1999, active member in good standing through present


Florida League of Cities, Florida Municipal Attorney’s Association Member/Lecturer



The Florida Chamber of Commerce,

Growth Management Short Course
Environmental Permitting Short Course


The Florida Bar, Continuing Legal Education (CLE) Programs

City, County and Local Government Section of the Florida Bar
Environmental and Land Use Law Section of the Florida Bar
Administrative Law Section of the Florida Bar
University of Florida Law program, speaker and guest lecturer


Continuing Legal Education, CLE-International Programs,

Dealing With Government
Litigating Land Use and Takings Claims
Defending Local Government Land Use Denials
Regulatory Takings under the U.S. and Florida Constitution
Wetlands Regulations


Florida Municipal Attorney’s Association Speaker Noise Ordinances

Southwest Florida Chamber of Commerce “Issues 08” Southwest Florida Legislative Delegation

A Sustainable Southwest Florida: Creating a Vision. Participant City Attorney

 
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