FL Appeals Court Holds Organization’s Allegations Concerning Land Use Documents and Provisions Not Incorporated into County’s Comprehensive Plan Could Not Be Raised in a Challenge Under the Consistency Statute

This post was authored by Matthew Loescher, Esq.

The Conservancy of Southwest Florida, Inc., filed a single-count declaratory judgment action under the aegis of section 163.3215 of Florida’s Community Planning Act, challenging Collier County’s approval of a development project proposed by Collier Enterprises Management, Inc. (CEM). The proposed development, known as Rivergrass Village, encompassed nearly a thousand acres of rural land in the eastern part of the county, and entailed a mixture of single and multifamily residential homes, commercial, and public space. In its lawsuit, the Conservancy claimed that the Rivergrass Village development violated various parts of Collier County’s comprehensive plan (the Growth Management Plan or “GMP”), as well as provisions within Collier County’s Land Development Code. The circuit court resolved part of the Conservancy’s declaratory relief action—in which the Conservancy argued that the development order violated traffic impacts and fiscal neutrality requirements of the GMP—through a partial summary judgment in favor of Collier County and CEM. The remaining issues were decided against the Conservancy in a final judgment after a bench trial.

The record reflected that the Conservancy filed the reports and deposition transcripts of several expert witnesses who opined that the road networks, the proposed traffic mitigation, the demands on county infrastructure, as well as the anticipated population growth and fiscal impacts of the Village Rivergrass project would violate Rural Lands Stewardship Area (RLSA) Policies 4.14, 4.16, and 4.18. Taken together, the court found that these issues and RLSA policies fell within the definitional purview of “intensity” under section 163.33164(22), as they implicate “the measurement of the use of or demand on facilities and services.” As such, the circuit court erred in its ruling, and this aspect of the Conservancy’s claim was found to be cognizable under the consistency statute and should have been adjudicated on the merits of the evidence. That aspect of the judgment was therefore reversed and remanded for further proceedings.

The court next reviewed Section 163.3215, which extended standing to those “aggrieved or adversely affected” by local government decisions concerning a development order “which materially alters the use, or density or intensity of use on a particular piece of property which is not consistent with” a comprehensive plan. Here, the court found that if the legislature had intended for this section to authorize private consistency challenges to encompass any and every detail of a comprehensive plan, section 163.3215(3) would have been worded differently. Similarly to the court’s prior holding in Heine, the circuit court confined the scope of issues in this lawsuit to those implicating “intensity of use” under section 163.3215(3). In this case, the trial court went too far when it curtailed section 163.3215(3)’s applicability to the Conservancy’s traffic and fiscal impact claims, as those claims fell within the statute’s purview. Accordingly, the court reversed that aspect of the judgment and remanded this case for further proceedings.

Conservancy of Southwest Florida, Inc. v Collier County, 2022 WL 17366036 (FL App. 12/2/2022)