ConsiderWhether you are involved in rezoning land or obtaining a special exception, conditional use, variance, development order, or other entitlement to land in Florida, you will likely need approval from the local government where the property is located. But what if your request is denied? This article explores some of the common remedies available to an applicant in the event their application is denied.

If your application is denied, it’s important to know your options. While some jurisdictions have administrative remedies available for an applicant to exhaust (e.g., rehearing, reconsideration, administrative appeals, etc.), others may not. It is important to be familiar with local rules, including land regulations, ordinances, administrative codes, and any applicable staff interpretations. Exhaustion of available non-judicial remedies is an important consideration in any potential land use challenge.

In addition to exhaustion of any available local remedies, the following is a brief overview of some common legal remedies that could be available to an applicant in the event of a denial:

Petition for writ of certiorari

This process involves filing a fairly-detailed petition with the local circuit court within 30 days from the date of the denial. It can take many months, even years, to conclude. This is the typical “zoning appeal,” and the standard of review is whether the local government’s decision is supported by competent substantial evidence, whether there were any procedural due process violations, and whether the decision maker followed the essential requirements of the law. See Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). Each party typically pays its own legal fees.

“Consistency challenge”


Continue Reading What options are available to challenge denial of a land use application in Florida?

vacation rentalBeginning January 3, 2022, Collier County will require registration of “short-term vacation rentals.” This includes any “habitable space . . . for a term of six months or less. . . . .” unless exempted under state law. To view the Ordinance, click here.

Some may recall that Collier County had a similar rental registration ordinance between 1996 and 2010. The old rental registration requirement was annual beginning in 1999, and a yearly fee was required. The new registration is a one-time requirement (although changes to ownership or the owner’s designated contact person must be reported to the County within ten days).

What do short-term property owners need to do to comply?

In most cases, to have a “code-compliant” rental in unincorporated Collier County, an owner must:
Continue Reading New Collier County Short-Term Rental Registration Begins January 2022

land developmentIn 1995, the Florida Legislature took bold steps to protect private property rights by enacting the Bert J. Harris, Jr. Private Property Rights Protection Act, better known as the Bert Harris Act. The Act created a new cause of action for private property owners whose real property is burdened by government action, such as a new ordinance or regulation that limits development of a piece of property. The Act gave private property owners peace of mind when it comes to being able to use and develop their property the way they want to.

During the 2021 legislative session, the Florida Legislature took steps to strengthen the Bert Harris Act in favor of private property owners through HB 421/1101.

Procedurally, the bill passed both the House and Senate chambers, but has not yet been signed by the Governor.

What impact will this bill have on Florida landowners?


Continue Reading New Legislation Designed to Relieve the Burden on Landowners Filing Bert Harris Claims

Unlike certain “unalienable rights” granted to citizens under the United States Constitution, property interests are traditionally understood to have been created by a number of independent sources such as statutes, ordinances, or contracts. The general concept of property itself is construed as the group of rights inhering in the citizen’s relation to the physical thing, such as the right to possess, use and dispose of it.

Modern courts, however, acknowledge that the traditional notion of property interests encompass a variety of other valuable interests, such as intangible and incorporeal rights (e.g., leases, easements, right-of-ways, and mortgages) or other uses which extend well beyond the historic norms of property to establish an entirely legitimate claim to certain additional land use entitlements as well.

What is an “Exaction”?

The term “exaction” is when a condition for development is imposed on a parcel of land which requires the developer to mitigate anticipated negative impacts of the development. An exaction may include some sort of mandatory dedication of real property for impact fee payments, sewer or water utility connection fees, or public use of land for a park, school, or transportation facility or expansion anticipated for certain related infrastructure improvements.

The Doctrine of “Unconstitutional Conditions”


Continue Reading What Are My Private Property Rights in Florida Against Unlawful Land Development Exactions?

Due to the growing use by local governments of certain quasi-judicial code enforcement proceedings to obtain compliance with their local land use and zoning regulations, it is important for Florida property owners and business operators to have a thorough understanding of administrative enforcement proceedings.

Local Government Enforcement Authority

Florida’s statutory scheme governing local code enforcement procedures is divided into two separate parts under Chapter 162 of Florida Statutes. There is no statutory provision prohibiting local governments from enforcing their land use development and zoning regulations by other means. Section 162.13 provides that the provisions of Chapter 162 are supplemental procedures for local governments to achieve code compliance and are therefore intended “to provide an additional or supplemental means of obtaining compliance with local [government] codes.”

Penalties and Fines


Continue Reading How Can Local Governments in Florida Enforce Compliance With Their Land Use & Zoning Regulations?

Last week, the Conservancy of Southwest Florida hosted Cornell University Professor Dr. Tony Ingraffea, as part of its “Evenings with the Conservancy” series who spoke on the “Effects of Unconventional Drilling” on November 8.

Oil & Gas in Southwest Florida

The evening began with an introductory presentation by Nicole Johnson, Director of Environmental Policy

Over the past several years, hydraulic fracturing (or “fracking”) has become a very divisive environmental and political issue in many areas of the country. As our society’s desire for cleaner energy has become more of a priority, lawmakers and agencies at federal, state, and local levels have been confronted with determining whether and to what extent the use of hydraulic fracturing methods should be regulated, and whether such activities pose a potential threat to our drinking water sources.

What is Fracking?

Developed in the 1940’s, hydraulic fracturing is a method to extract conventional oil and gas resources found in permeable sandstone and carbonate reservoirs by drilling vertically into rock formations and injecting fluids under high pressures.

Continue Reading The Future of Fracking in Florida

imac-965325_1280As 2016 closes, we reached out to our team and asked them to share some of the most notable issues in real estate and land use & environmental law:

Residential Closing Best Practices Requirements by Amanda Barritt

2016 saw the CFPB regulations and Best Practices requirements move into high gear with respect to financed residential

Under Section 252.363, Florida Statutes, qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months.

In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

Types of Permits that Qualify


Continue Reading New Executive Orders Provide Further Statutory Extension Opportunities for Florida Development Approvals

Foreclosure Nick Bastian FlickrOn August 24, 2016, the Fourth District Court of Appeal issued an opinion in Ober v. Town of Lauderdale-by-the-Sea, No. 4D14-4597, 2016 WL 4468134 (Fla. 4th DCA August 24, 2016) that is likely to have broad implications on Florida’s foreclosure process and negatively impact investor interests in distressed real estate. Moving forward, from a land use perspective, the case should also serve as a cautionary tale and reminder about the importance of a prospective buyer’s due diligence.

Background

The genesis of the case began on November 26, 2007, when a lis pendens was recorded on a property as part of a foreclosure proceeding against a homeowner. Thereafter, a bank obtained a final judgment of foreclosure on the property in September of 2008. Several years following the final judgment, a real estate investor, Ober, purchased the property on September 27, 2012 at a judicial sale.

The crux of the case revolved around seven (7) separate code enforcement liens that had been recorded on the property by the Town between the dates of July 13, 2009 and October 27, 2011, all stemming from violations that occurred after the final judgment was entered. Finally, in 2013 the Town began to impose three more liens on the property in relation to the earlier violations.

In an attempt to strike the liens against his property, Ober filed an action to quiet title in civil court. In response, the Town filed counterclaims to foreclose the ten (10) liens, which were later approved by the trial court in its final judgment that was entered against Ober.

According to the Ober Court, Florida’s Lis Pendens Statute Does Not Apply to Liens Recorded Between Final Judgment and the Judicial Sale


Continue Reading New Florida Foreclosure Case May Lead to Less Participation and Greater Risk for Real Estate Investors