1. 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

2. THE APPROVAL PROCESS
© 2019 Roetzel & Andress LPA

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

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

5. How will the request be reviewed?
Administratively
Public hearing

6. If notice is required, what is required, who is responsible for providing it, and when must it be provided?
What is required?
Posted notice
Mailed
Published

7. If notice is required, what is required, who is responsible for providing it, and when must it be provided?
Who is responsible for providing it?
Applicant
Applicant and local government
Local government

8. 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

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

10. Is there opposition?
Staff
Adjacent land owners
Public Interest Groups

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

12. 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

13. 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

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

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

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

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

18. THE APPEAL PROCESS
© 2019 Roetzel & Andress LPA

19. The Appeal Process
Identify the Procedure
Know the Criteria

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

21. The Appeal Process
Identify the Procedure
Know the Criteria

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

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

24. 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?

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

26. 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

27. 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

28. 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

29. 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?

30. EXAMPLES
© 2019 Roetzel & Andress LPA

31. 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

32. EXAMPLE – Lee County Variances
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?

33. 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
APPEAL
Circuit Court
APPROVE
Board of Zoning Appeals
RECOMMEND
Planning Commission
Staff

34. EXAMPLE – Collier County Variances
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

35. EXAMPLE – Collier County Variances
APPEAL
Circuit Court
APPROVE
Board of Zoning Appeals
RECOMMEND
Planning Commission
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?

36. EXAMPLE – Lee County Rezoning
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
APPEAL
Circuit Court
APPROVE
Board of County Commissioners
RECOMMEND
Hearing Examiner
Staff

37. 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

38. EXAMPLE – Lee County Rezoning
APPEAL
Circuit Court
APPROVE
Board of County Commissioners
RECOMMEND
Hearing Examiner
Staff
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

39. EXAMPLE – Lee County Rezoning
APPEAL
Circuit Court
APPROVE
Board of County Commissioners
RECOMMEND
Hearing Examiner
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?

40. 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.
Staff

41. EXAMPLE – Collier County Rezoning
APPEAL
Circuit Court
APPROVE
Board of County Commissioners
RECOMMEND
Planning Commission
INFORMATION ONLY
Neighborhood Information Meeting
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

42. EXAMPLE – Collier County Rezoning
APPEAL
Circuit Court
APPROVE
Board of County Commissioners
RECOMMEND
Planning Commission
INFORMATION ONLY
Neighborhood Information Meeting
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.
Staff

43. EXAMPLE – Collier County Rezoning
APPEAL
Circuit Court
APPROVE
Board of County Commissioners
RECOMMEND
Planning Commission
INFORMATION ONLY
Neighborhood Information Meeting
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?

44. Christopher D. Donovan Sarah E. Spector
850 Park Shore Drive, Third Floor
Naples, FL 34103
@AppellateGuru
Sarah E. Spector
2320 First Street, Suite 1000
Ft. Myers, FL 33901