Posted by: Patricia Salkin | March 18, 2013

FL Appeals Court Upholds Challenge to Planned Unit Development Ordinance Explaining Certorari Review

In May 2011, Hendry County, Florida, adopted an Ordinance rezoning 3,127 acres of agricultural land to a planned unit development in order to allow for the construction of a natural gas power plant and solar energy farm. In September 2011, the Seminole Tribe of Florida petitioned for a writ of certiorari in Florida Circuit Court seeking invalidation of the ordinance on several grounds. The tribe claimed the Ordinance violated the Local Development Code (LDC) and charged that the County had failed to properly review the project’s consistency with the Big Cypress Seminole Indian Reservation and the Hendry County Comprehensive Plan. The circuit court denied cert and the tribe here appeals, seeking second-tier certiorari.

On appeal, the court noted that its review was limited to assessing procedural due process and engaging the question of whether the circuit court had applied the correct law when it denied cert. The court noted that while the circuit court had incorrectly concluded the ordinance was not subject to certiorari review because the tribe had allegedly failed to prove irreparable harm, the circuit court had also engaged each of the tribe’s arguments in turn, ultimately affording the tribe the necessary procedural due process.

On the tribe’s claim that the Ordinance was inconsistent with the County’s comprehensive plan, the circuit court properly concluded that state statutes fixing the process by which a party may challenge a PUD’s consistency with a comprehensive plan precluded the tribe from lodging such a challenge via a writ of certiorari. Thus, on that matter the appellate court held that the tribe had been afforded procedural due process and the lower court had applied the appropriate law.

Regarding the tribe’s claim that the Ordinance was incompatible with its adjacent reservation and violated a portion of the LDC, the circuit court had reviewed the tribe’s arguments and concluded that the County had adequately addressed all of the issues raised. The tribe had raised concerns about the impacts the project might have on water, ecotourism, and wildlife on the Big Cypress Reservation. The circuit court found that the County had adequately addressed the water concern by including a condition in the Ordinance which required that the project gain the approval of the South Florida Water Management District for its water use. On the matter of ecotourism, the circuit court found convincing the evidence presented by the County that the power plant and other ecotourism uses could coexist without one negatively impacting the other. As for wildlife, the circuit court concluded that the County’s decision to require water, wildlife, and wetland habitat approvals from the relevant state and federal agencies demonstrated enough to satisfy the County’s obligations on that matter as well. The appellate court held that the circuit court had properly applied the law and afforded the tribe procedural due process on the compatibility matters. The court further declined the tribe’s request to reexamine the weight afforded to certain evidence by the circuit court, noting that such an examination exceeded the scope of its review.

Seminole Tribe of Florida v. Hendry County, 106 So.3d 19 (Fla. Dist. Ct. of Appl., 2d Dist., 1/23/13)

The opinion can be accessed at:,%202013/2D12-1657.pdf

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