Posted by: Patricia Salkin | August 31, 2013

FL Appeals Court Holds Expedited Power Plant Siting Rules Did Not Preempt Tribal Comprehensive Plan Challenge

In May 2011, at the request of landowner McDaniel Reserve Realty Holdings, the County of Hendry, Florida, rezoned eleven parcels of land abutting the Seminole Indian Reservation from general agricultural use to a Planned Unit Development, which was meant to allow development of an electric power plant on the land. The parcels were then sold after rezone to Florida Power & Light Company for construction of the power plant. The Seminole Tribe filed a complaint challenging the rezone under Florida law as being inconsistent with the County’s comprehensive plan. At trial, the court dismissed the case and denied certiorari on the grounds that state statutory provisions used by the Tribe to challenge the rezoning’s compliance with local comprehensive plans was preempted by the Florida Electrical Power Plant Siting Act (PPSA). While Florida Power & Light Company had not yet initiated a PPSA approval process, the court held that the Tribe would have the opportunity to challenge the rezoning decision’s conformance to the County comprehensive plan under the PPSA certification process. The Tribe appealed.

On appeal, the court acknowledged that the PPSA was designed to provide a centralized “one-stop licensing process” for power plants, freeing such projects from onerous approval processes involving multiple agencies and levels of government. Further, the appellate court noted that the PPSA did contain a review process meant to evaluate whether a power plant project was consistent with its local comprehensive plan. Under the PPSA, local governments are asked to determine a project’s conformance to local comprehensive plans and, if there are issues, PPSA review processes may be suspended until local land use issues are resolved.

However, the court found that the Tribe could not have challenged the rezoning decision under the PPSA process, since the rezoning decision was made before the power company had begun the PPSA approval process. Under the PPSA language, those challenging a power plant’s conformance with local comprehensive plans may only do so if the conformance issue exists at the time the PPSA application was filed. Because the PPSA process had not yet begun when the county rezoned the property, any challenge the tribe might make to the power plant’s conformance with Hendry County’s comprehensive plan would have to be based on the zoning in place sometime in the future, at the time Florida Power & Light Co. filed its PPSA application. The court held that this did not provide the Tribe a remedy, since the pre-PPSA zoning change was the source of their grievance, and that grievance would not be addressed during subsequent PPSA review.

Thus, the court found that the while the PPSA provides an opportunity to challenge rezoning decisions during the process of certifying power plants, it does not preempt challenges to rezoning decisions which happen prior to and outside of the PPSA review process. Since, in this case, PPSA review proceedings had not yet commenced when the Tribe challenged the County’s rezoning decision, the PPSA did not apply, and the Tribe should have been permitted to proceed with the suit under Florida law governing zoning decisions made not in accordance with local comprehensive plans.
Seminole Tribe of Florida v. Hendry County, 114 So.3d 1073 (Fla. Dist. Ct. of Appl., 2d Dist., 6/12/13)

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