The Rules of the Game – Analyzing Development Standards

SUMMARY:

Development standards are the parts of the LDRs that say what must be done and how it must be done; they are the measures against which development activities are reviewed to determine if they are being done “right.”

The development standards need to:

  • Implement and tie directly to the local government’s comprehensive plan, from concept to detail, to reflect the community’s adopted development perspective and goals;
  • Have, in each standard, a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare and be tailored to actually address the public purpose;
  • Be effective; actually doing what they are intended to do without unintended consequences;
  • Inform everyone of the rules to be followed, so they know their rights, opportunities, and obligations;
  • Be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;
  • Be specific and clear enough to direct the land use decisions so that the decision-makers do not have arbitrary discretion in making the decisions and clear enough to avoid arbitrary enforcement;
  • Be efficient by not being unnecessarily complex, including more than needs to be addressed, or being unreasonably difficult or costly to use, administer, or enforce;
  • Be equal and impartial in their operation; applicable in all like cases with fairly consistent, equitable results, treating like things alike;
  • Be reasonable and not impose unnecessary or excessive restrictions;
  • Not be so restrictive that they are confiscatory, precluding any reasonable use of a property;
  • Be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose, with justifiable distinctions, and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar or similarly impacting uses/activities;
  • Be consistent with applicable federal and state laws, but not attempt to implement or regulate beyond recognizing those laws, unless so directed by those laws;
  • Restrict administrative or quasi-judicial actions to the adopted regulations and not allow the unlawful delegation of the legislative authority or arbitrary discretion in whether to follow the standards; and
  • Provide direction to the courts of what should have been the local governments review factors, so meaningful judicial review is available.

FULL ARTICLE

Several of the articles on this website discussing quasi-judicial hearings (We Could Play This Game Much Better If We Knew The Rules, Purpose of a Florida Quasi-judicial Land Use Hearing, Conducting Florida Quasi-Judicial Land Use Hearings That Work) say that the key to quasi-judicial hearings is that they apply the adopted regulations. But can those regulations say anything, in any manner, as long as they are adopted? As you probably suspected, the answer is no; there are limitations, both legal and practical.

These limits affect both the procedural and the substantive provisions of the LDRs. Putting aside the procedural provisions for other articles, this article addresses the substantive regulations, the development standards.

The development standards are the parts of the LDRs that say what must be done and how it must be done. They are the measures against which development activities are reviewed to determine if they are being done “right.” Without them, there are no regulations. Without properly written ones, there can be regulatory chaos or regulation only for the sake of regulation.

What are “properly written” development standards?

Standards that implement the local comprehensive plan.

A major role, if not the major role, of the LDRs is to implement the comprehensive plan, In addition to this being mandated by state law,1 as addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, how well the LDRs development standards implement the comprehensive plan is a major part of whether the development orders approved under the LDRs are considered “consistent” with the comprehensive plan.

The development standards should also be the method of implementing the local government’s development perspective and goals. If the development standards do not reflect the city’s or county’s goals, they cannot implement those goals and are, in actuality, either reflecting some other goals or, by not reflecting any clear goals, creating confusion and unintended consequences.

Therefore, the development standards of the LDRs must be tied to the local comprehensive plan, from concept to detail. If a jurisdiction wants LDRs that reflect a particular approach, such as a form-based code, or include a particular concept, such as transfer of development rights, that approach or concept must be addressed, or at least be allowed, in the comprehensive plan; an approach or concept foreign to the comprehensive plan cannot be consistent with the plan and certainly does not implement the plan.

The development standards must also implement the details of the comprehensive plan. The greater the detail in the comprehensive plan, the more the LDRs development standards must reflect the plan language, even to the point of putting the plan language in the development standards directly.

Standards that relate to legitimate public purposes.

Development standards are limited by the power of the local government to make such regulations (as addressed in the articles Limitations on Florida Police Powers, Authority to Regulate Land, and Powers of Local Governments to Regulate Land). These development standards, as an exercise of these police powers, must have a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare.2 Further, the regulation must be tailored to actually address the public purpose(s), 3 based on an actual analysis of the situation.4

Effective standards.

There is really little reason to have regulations if they are not effective; why have regulations if they don’t do what they are supposed to do. To effectively serve a public purpose, that purpose needs to be clearly identified (much more than just “to protect the public health, safety, and welfare”) and the regulations must remain true to that purpose from concept to detail. Standards for special exceptions or conditional uses should clearly delineate what is needed to make the use compatible with the permitted uses in the district or to mitigate the factors that make the use a special exception/conditional use, rather than a permitted use, in the first place. Standards that state they are for the purpose of encouraging a use or activity should not have so many restrictions that the use is actually discouraged. Similarly, if a use or activity is discouraged in a location or manner, the encouraged alternatives should be realistically possible, without so many restrictions that it is about as difficult to have the encouraged use/activity approved as it is the discouraged use/activity. Each standard should be reviewed for effectiveness against these tests: “What goal or purpose is this standard to implement? Does it implement that? Specifically, what is this standard to do? Does it do that? Does it do more than that or have unintended consequences? Is there a more effective way to do that, with less undesirable consequences?

Standards that inform.

The development standards are the “rules of the game.” As discussed in the article We Could Play This Game Much Better If We Knew The Rules, these “rules” should inform everyone (applicants, opponents, purchasers of property, users of property, and application or enforcement action decision-makers) of the rules to be followed. By these rules everyone knows their rights, opportunities, and obligations under the LDRs; what they have the right to do, must do, ought to do, and may do.

The development standards can also inform the user or potential user of the jurisdiction’s intent on certain subjects and overall approach to development. When the standards implement the comprehensive plan5 and are internally consistent, they can inform potential users of whether the community encourages urban development, rural conservation, rapid development review, slow growth, or any other community goal. Poorly written standards can also “inform” (whether it is true or not) the potential user that the jurisdiction doesn’t have a clear vision of what they want, isn’t interested in efficient effective regulations, or may be a regulatory nightmare that it isn’t worth the effort to wade into.

Standards that are certain and not inappropriately vague.

The LDR standards cannot be so uncertain as to be unconstitutionally vague under the Due Process provisions of the State and Federal Constitutions.6 To be constitutionally valid, regulations, such as the standards in LDRs,7 must be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;8 the standard must give adequate warning or fair notice of what is required.

As stated by the Florida Supreme Court, “though easily enunciated, the vagueness test is often difficult to apply. … What constitutes unconstitutional vagueness is itself vague.”9 Imprecise language, by itself, does not make a standard fatally vague.10 A standard is not necessarily unconstitutionally vague just because it is subject to different interpretations.11To be sufficiently clear, the standard does not have to be intricately detailed;12 the amount of detail needed depends on the subject and the difficulty in providing highly detailed standards.13

One way to measure whether a standard is too vague is to evaluate the standard in its context of use. If the potentially ambiguous provisions of the standard gains sufficient meaning or clarity through a reading of the LDRs as a whole, the local comprehensive plan (which the LDRs are supposed to be implementing), state or federal law, common law, common trade usage, or some other relevant source (especially one referenced in the standards), it may not be considered unconstitutionally vague.14

Meeting constitutionality requirements is not the only reason a standard should not be vague, however. The standards are the rules that are to be followed. From a practical standpoint, if they are so unclear, so vague, that anyone that needs to use them can’t readily figure them out or has to resort to digging through multiple sources to figure out what they mean and what needs to be done, then they have failed as meaningful regulations. If it is not possible to tell from the standards what to do (or not do), the standards cannot implement the jurisdiction’s goals and intent in a consistent, efficient, and effective manner.

Standards that protect against arbitrary decisions and enforcement.

One major reason development standards should not be vague is because standards that people can’t figure out result in arbitrary decisions on when and how the standards apply. Arbitrary development standards15 are not lawful16 and do not aid in a fair, efficient and effective implementation of the comprehensive plan and the jurisdiction’s land development goals. The standards are vulnerable to claims of arbitrariness, not just when they have actually resulted in arbitrariness, but even when there is an opportunity for arbitrariness.17

The standards must be specific and clear enough to actually direct the land use decisions; standards cannot allow the decision-makers arbitrary discretion in making the decisions.18 The standards must also be clear enough to avoid arbitrary enforcement.19

Efficient standards.

Standards that are unnecessarily complex cannot be readily followed, meaning they are likely to result in longer review processes, be applied inconsistently, or be ignored, none of which is very efficient. Standards that include much more than needs to be addressed are similarly likely to be inefficient. Every development standard should be crafted with an eye to how it will be administered and enforced. If it cannot reasonably be administered or enforced or the cost, in terms of staff time and tax dollars spent, for doing so is too high, the standard’s inefficiency likely does more harm to the regulatory purpose it was to serve than good. Similarly, if the standards require too much of the user, beyond what is really necessary, there is every incentive for the user to try to get the standard waived or varied, or the user just ignores the requirement and hopes they aren’t called on it; this is also inefficient.

Standards that are equitable and nondiscriminatory.

The development standards must be equal and impartial in their operation,20 applying in all like cases with fairly consistent, equitable results. This does not mean that every person and every use must be treated the same, but that similar situations must be treated similarly.21 Consequently, the standards cannot group or separate uses in a way that creates unequal or discriminatory treatment between similarly situated uses.22 The test for determining the validity of a grouping or classification in the regulations is to assess “whether that classification rests upon some ground of difference having a fair and substantial relation to the object of the [regulation], so that all person similarly circumstanced shall be treated alike.”23

Reasonable and non-confiscatory standards

The development standards must be reasonable;24 and cannot impose unnecessary or excessive restrictions on a legitimate use of property.25 Additionally, the standards cannot be so restrictive that they are confiscatory (creating a regulatory taking of the land), precluding any reasonable use of property.26

Standards that are internally consistent.

Development standards need to all work together in a consistent manner. They need to be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar uses/activities or those with similar impacts on the community. There must be justifiable distinctions between the groupings or the way the uses or activities are treated.27

Further, the standards have to treat like things alike. The development standards cannot apply to only certain uses while permitting other similar uses to go unregulated or with lesser regulation28 and cannot unreasonably encroach on one’s right to conduct a legitimate business, even with the intent of promoting the public interests.29

Similarly, the regulations cannot be arbitrarily applied to uses or activities. There must be some analysis done to justify how the regulations will work in the particular jurisdiction and to demonstrate that they will advance the public purpose they purport to be related to;30 the standards need to have a reasonable or practical basis.31 This means that borrowing regulations from other jurisdictions without examining their fit in the target jurisdiction or pulling numbers out of the air because they sound good will not suffice.

Beyond not just conflicting with each other, the standards also need to all advance common goals or purposes.32 Standards that don’t have a grounding in the jurisdiction’s larger goals or which are at odds with the approach taken with other standards in the LDR often result in arbitrary requirements. It should be remembered that the standards adopted in the LDRs work with each other to define the jurisdiction’s intent on how the community is to be developed; a standard isn’t just about regulating that one use or activity, they cumulatively define the community’s regulatory theme.

Standards that are consistent with federal and state laws.

The development standards need to be consistent with applicable federal and state laws. But the standards should not, in most cases, attempt to implement these laws.

If the subject of the federal or state law is solely in the federal or state authority, the local development standards should recognize those laws and that authority, with no standards that conflict with the laws or the authority, but should not attempt to implement these laws (e.g. include requirements of proof of compliance, or penalties for non-compliance, with these laws). When the subject is exclusively in the federal or state authority, local governments have no authority to make laws on that subject (they are “preempted”) or to administer those laws, and any attempt to do so would not be valid.33

If the subject is also concurrently within the local government’s authority, care must be taken to keep local laws, and their implementation/enforcement, from creating conflicts with the state or federal law. Often, even though the local government may also has authority to regulate in a subject area, when the issue is not a major local issue or the review factors are so complex or expensive as to exceed the local government’s ability to enforce local standards, it may be more appropriate to just defer to the state or federal regulations in the local development standards.

There are some federal and state laws, however, that address local government actions34 and need to be directly integrated in the local development standards. These are federal and state laws that should (and usually must) be implemented by the local development standards.

Standards that restrict administrative and quasi-judicial actions to the proper role.

The standards are the rules to be followed. Only the legislative body can make these standards or rules. Accordingly, governmental decisions made or actions taken by persons or bodies, other than the legislative body acting in its legislative capacity, must only be to apply, administer, or enforce the adopted regulations.

If the standards in those regulations are essentially non-existent, too vague, or provides so little guidance that making decisions requires the use of factors or analysis other than those adopted for that purpose,35 the decision-maker becomes the rules-maker (by deciding what not-adopted rules must be met) rather than the administrator or applier of the law. This is beyond the scope of power (authority) of the administrator or quasi-judicial decision-maker.36 Therefore, the standards cannot authorize or allow consideration of any factors outside of the adopted standards.37

Further, the standards applied to development and land use activities must be adopted by the legislative body,38 in almost all situations within the LDRs,39 rather than being part of an administratively created development procedures manual, by interpretation, or by customary usage (so as to prevent unlawful delegation of the legislative authority).40 And, again, the legislative body cannot allow the standards it adopts in the LDRs to be so vague or inadequate, either purposefully or by default, that they would allow someone other than the legislative body to say what the rules are (an unlawful delegation of the legislative authority).

Additionally, the standards cannot allow arbitrary discretion in whether the standards must be followed or can be ignored.41 The standards have to actually create the rules that are to be followed and ensure that they, and only they, are followed.

Standards that provide direction to reviewing courts.

The standards should be able to provide direction to reviewing courts of what should have been the local governments review factors, so meaningful judicial review is available. If they are written and followed properly, there should be clear requirements that the decision-makers should have followed, so the reviewing court can accurately examine the situation, without wandering through the whole record and improperly re-weighing the particulars.

Implications of Improper Standards

Besides the very important problems of comprehensive plans not being implemented and LDRs not effectively or efficiently achieving their purposes, there are other implications of not having appropriate standards.

If an application meets the standards, it must be approved.

As has been addressed in several other articles,42 if an application for a development order, except for a rezoning, meets the adopted standards, the application must be approved. If the standards don’t regulate what the jurisdiction actually intends and relies on the “discretion” of the application reviewer/decision-maker to get the intended result, they may well fail.43 Therefore, the implication of having standards that don’t do what they are supposed to do is that there may be undesired development or greater numbers of lawsuits.

If the standards are found to be invalid, the regulations are void.

Some may think that having vague or otherwise inadequate standards gives the decision-makers more discretion. In reality, it puts the regulations at risk for being declared invalid or void (as if they did not exist).44 This can result in whole portions of the LDRs being declared void, as happened to Miami-Dade County’s “Unusual Uses” provisions after the Third District Court of Appeals’ first ruling in Miami-Dade County v. Omnipoint Holdings, Inc.,45 which was later quashed by the Florida Supreme Court,46 but resulted in a lot of headaches in the interim.

When the standards that are found to be invalid are for special exception type uses (uses that would not be allowed in a district unless they meet a heightened review level), the uses themselves become prohibited and become unavailable as potential uses in those districts.47 Ironically, this actually gives a disincentive to those applicants that might be inclined to challenge a denial on the grounds that the standards are inadequate, in that, rather than winning the challenge and being able to move forward with the use, the applicant can win the challenge and have no option to request the use; helping to perpetuate the inadequate regulations.

The decision-maker does not have the authority to ignore the standards.

Just as the decision-maker does not have the authority to go outside the adopted standards to consider other factors, the decision-maker also does not have the authority to ignore what is adopted, even if it is not relevant or is inconsistent with other, controlling, laws.48 This means that, unless the regulations provide for exceptions or circumstances when the standards can be determined to be inapplicable or irrelevant, all of the standards in a group or section would have to be applied, whether they should be or not. It also means that standards that do not follow or are not consistent with federal or state law, or even the local comprehensive plan, must be followed and applied. Since these laws and the comprehensive plan are supposed to be superior to local regulations, it is clear that keeping outdated or inconsistent standards in the LDRs can create significant legal problems.

Conclusion

The purposes for having the standards define the limits that are placed on the drafting and administration of the standards. To follow the relevant constitutional limits, they must be within the proper scope of power of the jurisdiction and the actual decision-maker. To implement the local goals, they must provide meaningful regulations that, when applied and enforced, actually implement the intent and requirements of the local charter and comprehensive plan. To be efficient, effective, and fair, they must allow and require actions and decisions that are consistent, non-arbitrary, and equitable. To inform, they must be sufficiently clear and consistent as to actually advise every one of the rules they are to follow.

The standards are the heart of the LDRs. They say what must be done; everything else is just administration or process. As indicated in this article, there are many legal requirements for how the standards should be drafted. In reality, however, the courts are fairly lenient on how tightly these legal requirements bind the local governments. So what incentive is there for local governments to potentially tie their hands with specific standards? The biggest one, and the only one they should need, is to be able to actually implement the goals they have developed for the community, through clear, efficient and effective standards that address what is intended to be addressed, fairly and predictably. This should be enough to justify making the effort.

Endnotes:

  1. See the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan for the list of the Florida Statues addressing LDRs’ implementation of the comprehensive plan. Back to text.
  2. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981) (“If the regulation does not promote the health, safety, welfare, or morals of the public, it is not a valid exercise of the police power”); Newman v. Carson, 280 So.2d 426, 428 (Fla. 1973) (“Legislative action exercised under the state’s police power is valid if such exercise is confined to those acts which may reasonably be construed as expedient at least for the protection of public safety, public welfare, public morals or public health.”); Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The owner will not be required to sacrifice his rights [to make legitimate use of his lands] absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning restriction exceeds the bounds of necessity for the public welfare, … they must be stricken as an unconstitutional invasion of property rights”); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 (Fla. 1954) (“It is well settled that a zoning ordinance to be valid must bear a substantial relation to the public health, safety, morals or general welfare”) ; City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947) (“When regulations are to be imposed in order to promote health, welfare, safety and morals it is necessary that … the ordinance must have some relation to a lawful purpose-to promote health, welfare, safety and morals”). Back to text.
  3.  101 C.J.S. Zoning s16, as cited in Davis v. Sails, 318 So.2d 214, 218 (Fla. 1st DCA 1975) (“The required relationship of the zoning ordinance or regulation must be real and not feigned. The law will not tolerate an invasion of the right of property under the guise of a police regulation in the professed interest of the public health or safety when it is manifest that such was not the object of the regulation. Hence, a restrictive ordinance which bears no material relation to the public health, safety, morals, or general welfare cannot, under the guise of a zoning regulation, either confiscate property or inflict a substantial injury on the owner thereof”). Back to text.
  4.  7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“[A] zoning ordinance enacted simply as a piece of guesswork, with no attempt to study the city’s problems and no effort to accomplish some general plan adapted to the city’s needs in the way of health, safety, prosperity, welfare, and the like, and attended by no surety of the existing situation to which it applies, is generally unsustainable as a reasonable or valid police regulation”), citing State ex rel. Henry v. City of Miami, 117 Fla. 594, 158 So. 82 (1934) and Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So. 2d 379 (Fla. 5th DCA 1984). Back to text.
  5. Assuming the comprehensive plan is well written. Back to text.
  6. The Federal and State Constitutions (Amendment XIV of the U.S. Constitution and Article I, Section 9, of the Florida Constitution) provide that people cannot be deprived of life, liberty, or property without due process of law. Generally speaking, the greater the potential impact on the interest, the greater the amount of due process protections required. This means that criminal laws, those laws that involve highly protected interests, and those involving major economic impact (especially when there are lesser public interests protected by those laws) are typically construed to require greater amounts of due process protections. LDRs probably fall fairly far down the protection scale, except in the cases of freedom of speech rights or other “fundamental” rights. That being said, however, due process rights still control the LDRs, albeit at a lesser level than in some other situations. Back to text.
  7. There is at least one case, however, that said this test does not apply to regulations such as the LDRs unless someone who violates the regulations is subject to penalty (a “fine, penalty, or confinement inflicted upon a person by the authority of the law”). Florida E. Coast Indus. Inc. v. State, Dept. of Cmty. Affairs, 677 So.2d 357, 362 (Fla. 1st DCA 1996). Back to text.
  8. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977); Webb v. Department of Professional Regulation, Bd. of Professional Engineers, 595 So.2d 1103 (Fla. 5th DCA 1992); Bertens v. Stewart, 453 So.2d 92, 93-94 (Fla. 2d DCA 1984), City of St. Petersburg v. Pinellas County Police Benev. Ass’n, 414 So.2d 293, 294-95 (Fla. 2d DCA 1982). Back to text.
  9. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977). Back to text.
  10. Cashatt v. State, 873 So.2d 430, 435 (Fla. 1st DCA 2004). Back to text.
  11. Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla. 1983). Back to text.
  12. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007); Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden,562 So.2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines …, that level of specificity is neither required nor workable.”). Back to text.
  13. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007) (“The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards”) quoting Askew v. Cross Key Waterways, 372 So.2d 913, 918 (Fla.1978). Back to text.
  14. D’Alemberte v. Anderson, 349 So.2d 164, 166-69 (Fla. 1977). Back to text.
  15. As one guide, according to § 120.57(1)(e)2.d., F.S., which regulates state agency rules, “[a] rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational ….” Back to text.
  16. N. Bay Village v. Blackwell, 88 So.2d 524, 526 (Fla.1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment”); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality.”); Friends of Great Southern., Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007). Back to text.
  17. ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 150 (Fla. 1st DCA 1979) (“Nor is it necessary that the record reveal that the governing body or its members have in fact acted capriciously or arbitrarily. It is the opportunity, not the fact itself, which will render an ordinance vulnerable”); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1104 (Fla. 3rd DCA 1983). Back to text.
  18. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953) (“The generally accepted rule is to the effect that an ordinance which vests in municipal authorities arbitrary discretion to grant or revoke a license to carry on an ordinarily lawful business, without prescribing definite rules and conditions for the guidance of the authorities in the execution of their discretionary power, is invalid”), quoting Permenter v. Younan, 31 So.2d 387, 389 (Fla 1947); City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947); Alachua County v. Eagle’s Nest Farms, Inc., 473 So.2d 257, 260 (Fla. 1st DCA 1985) (Without sufficient standards, “councilmen can act upon whim, caprice or in response to pressures which do not permit of ascertainment or correction”), quoting Effie, Inc. v. City of Ocala, 438 So.2d 506, 509 (Fla. 5th DCA 1983); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3rd DCA 1983). Back to text.
  19. State v. Mark Marks, P.A., 698 So.2d 533, 539 (Fla. 1997). Back to text.
  20. City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“[T]he specific exercise of police power … must be impartial and nondiscriminatory in its proscription”); City of Homestead v. Schild, 227 So. 2d 540, 543 (Fla. 3d DCA 1969) (“[T]he law of Florida is committed to the doctrine of the requirement that zoning ordinances and their exceptions must be predicated upon legislative standards which can be applied to all cases, rather than to the theory of granting an administrative board or even a legislative body the power to arbitrarily decide each case entirely within the discretion of the members of the administrative board of legislative body …”). Back to text.
  21. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
  22. Eskind v. City of Vero Beach, 159 So.2d 209, 211 (Fla.1963) (stating “Customarily, community attractiveness is accomplished by general zoning plans and related regulations which do not segregate selected businesses or activities for … discriminatory treatment. A regulation … must not impose discriminatory restrictions on the activities of a carefully selected business while permitting others similarly conditioned to engage in the prohibited activity”); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“Persons engaged in similar business activities must be treated without favoring any particular ones”). Back to text.
  23. State v. Lee, 356 So. 2d 276, 279 (Fla. 1978). Back to text.
  24. Dade County v. Nat’l Bulk Carriers, Inc., 450 So.2d 213, 216 (Fla. 1984); City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960) (“In order to be upheld the ordinance must … be reasonable …); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“Although police powers of municipalities are sufficiently broad so as to control the use of property under a general zoning plan, the application of the plan must not be unreasonable …”) citing, in addition to National Bulk Carriers, Oka v. Cole, 145 So. 2d 233 (Fla. 1962) and Dade County v. Moore, 266 So. 2d 389 (Fla. 3d DCA 1972). Back to text.
  25. Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power”); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“The right of owners to devote their land to any legitimate use is properly within the terms of the United States Constitution and the legislature may not, under the guise of the police power, impose unnecessary or unreasonable restrictions on that use”), citing Prescott v. Charlotte County, 263 So. 2d 623 (Fla. 2d DCA 1972); William Murray Builders, Inc. v. City of Jacksonville, 254 So. 2d 364 (Fla. 1st DCA 1971); and 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“An excessive restriction on the use of private property that does not contribute substantially to the public health, morals, safety, and welfare is arbitrary and unreasonable and thus, unconstitutional”) citing City of Boca Raton v. Boca Villas Corp., 371 So. 2d 154 (Fla. 4th DCA 1979). Back to text.
  26. City of Hollywood v. Hollywood, Inc., 432 So.2d 1332, 1336 (Fla. 4th DCA 1983). Back to text.
  27. City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430-31 (Fla. 1954). Back to text.
  28. Cleburne v. Cleburne Living Center, Inc., 473 US 432, 448 (1985) (One use cannot be regulated more restrictively than other uses with similar aspects unless the first use “would threaten legitimate interests of the [local government] in a way that other permitted uses … would not. … [M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating [one use] differently from [other similar uses]. … [The local government] may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic. ‘Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ [citation omitted]”). Back to text.
  29. Eskind v. City of Vero Beach, 159 So.2d 209, 212 (Fla.1963), (“When there is no reasonably identifiable rational relationship between the demands of the public welfare and the restraint upon private business, the latter will not be permitted to stand”); State v. Reeve, 139 So. 817, 820 (Fla. 1932), (“An individual has the right to pursue any trade, calling, or occupation, without restriction, which is not injurious to the public. The exercise of the police power for the regulation of any trade, occupation, or calling can be justified only on the ground of necessity for the health, safety, welfare, or comfort of society). Back to text.
  30. Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So.2d 379, 380 (Fla. 5th DCA 1984). Back to text.
  31. Florida League of Cities, Inc. v. Dep’t of Envtl. Regulation, 603 So.2d 1363, 1368 (Fla. 1st DCA 1992). Back to text.
  32. E.g., special exception uses in a district should have standards that mitigate the special exception issues or concerns to make the “possible” special exception use compatible with the permitted uses in the district, so all the uses allowed in the district work together for the same goal. Back to text.
  33. State v. Harden, 938 So.2d 480, 485-86 (Fla. 2006) as to federal preemption. Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla. 2008) as to state preemption. Back to text.
  34. E.g., Section 47 U.S.C. 332(c)(7) (of the Telecommunications Act of 1996, addressing local zoning review of wireless telecommunications facilities) and the Community Planning Act in Part II, Chapter 163 of the Florida Statutes. Back to text.
  35.  E.g., standards that state “The structure must be appropriately located on the lot” without delineating what factors make it “appropriate” or “inappropriate;” decisions that are based on whether or not neighbors object to the request, making the neighbors’ variable opinions the controlling rule. Back to text.
  36. N. Bay Vill. v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956) (“The rule is well stated in Yokley on Zoning Law and Practice, Vol. 1, Section 62, as follows: ‘The general rule is that a zoning ordinance must prescribe definite standards and that neither the city council, the board of appeals created by ordinance or statute, nor the building inspector are properly vested with discretionary rights in granting building permits or variances in exception to the zoning ordinance unless there has been established a definite standard to guide them in the exercise of such powers’”). Back to text.
  37. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999) (“While a local government may deny a development order based on a determination that a proposed development would be inconsistent with the stated goals of the locality’s comprehensive plan, [citation omitted], a local government may not deny a development order based on criteria which are not specifically enumerated in its land use regulations”), citing Drexel v. City of Miami Beach, 64 So.2d 317 (Fla.1953); Effie, Inc. v. City of Ocala, 438 So.2d 506 (Fla. 5th DCA 1983); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1st DCA 1979); Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003) (“[Q]uasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”). Back to text.
  38. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999); City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76 (Fla. 2d DCA 1974). Back to text.
  39. One exception to the standards being required to be adopted in the LDRs is when the standard is found in the local comprehensive plan. As is addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, there are many problems with relying on standards within the comprehensive plan that are not also addressed in the LDRs (not the least of which is the fact that such an approach is arguably inconsistent with the intent of the 2011 version of section 163.3177(1), F.S., which indicates that the implementing standards are to be found in the LDRs, not the comprehensive plan itself), but, regardless, the comprehensive plan, as an ordinance adopted by the local legislative body, meets the “adopted in an ordinance” requirement. Back to text.
  40. Askew v. Cross Key Waterways, 372 So. 2d 913, 924–25 (Fla. 1978) (The doctrine of nondelegation of legislative power “represents a recognition of the express limitation contained in the second sentence of Article II, Section 3 of our [State] Constitution. … Under this doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.”); Sarasota County v. Barg, 302 So.2d 737, 742 (Fla. 1974) (“The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the Act. This amounts to an unrestricted delegation of legislative authority, in violation of the Florida Constitution, Article II, Section 3, F.S.A.”); Smith v. Portante, 212 So. 2d 298, 299 (Fla. 1968) (“No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards should appear expressly in the act or be within the realm of reasonable inference from the language of the act where a delegation of power is involved . . . .”); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla. 1968). (“When a statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say What the law shall be …”). Back to text.
  41. City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1105 (Fla. 3d DCA 1983) (“[A]n ordinance which permits a legislative agency to totally disregard listed criteria and to base a decision upon unlisted or no criteria” is not constitutional), as cited in Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 831 (Fla. 4th DCA 2007). Back to text.
  42. See We Could Play This Game Much Better If We Knew The Rules; Limited or “anything goes?” – Testimony evidence in a Florida quasi-judicial land use hearing. Back to text.
  43. They would likely legally fail, but, whether challenged or not, would likely fail to achieve the jurisdiction’s adopted goals, because that isn’t what the regulations require. Back to text.
  44. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953); North Bay Village v. Blackwell, 88 So.2d 524 (Fla.1956). Back to text.
  45. 811 So.2d 767 (Fla. 3rd DCA 2002). Back to text.
  46. 863 So.2d 195 (Fla. 2003). Back to text.
  47. City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76-78 (Fla. 2d DCA 1974). Back to text.
  48. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003). Back to text.

5 responses to “The Rules of the Game – Analyzing Development Standards

  1. now interpret that in Dade County 305 shall we say dirty dirty south style..lol…WORK!

  2. Pingback: Conducting Florida Quasi-Judicial Land Use Hearings That Work | Florida Land Development Regulations

  3. Pingback: Limited or “anything goes?” – Testimony evidence in a Florida quasi-judicial land use hearing | Florida Land Development Regulations

  4. Pingback: Purposeful Land Development Regulations | Florida Land Development Regulations

  5. VERY INTERESTING ARTICLE.

    I AM REQUESTING THAT ALL OF THE STUDENTS IN MY GREEN LAW SEMINAR CLASS AT LOUISIANA STATE UNIVERSITY READ THIS WELL RESEARCHED WORK.

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