December 17, 2010
Court deals blow to smart growth
A Florida appeals court ruling has made it financially risky to challenge growth management rules. The decision opens the door for local governments and developers to disregard guidelines intended to curtail taxpayers' costs and protect public resources.
In a ruling Tuesday, the 1st District Court of Appeal held the 1000 Friends of Florida and the Martin County Conservation Alliance liable for the legal fees of government agencies and developers.
The groups' offense? They appealed an administrative judge's ruling that allowed Martin County to reduce from 20 acres to 2 acres the minimum lot size required in land designated for agriculture outside the urban service boundary.
Citizen participation is critical to Florida's growth laws, so the groups' involvement was hardly unreasonable. And their contention that the dramatic change in land use was not accompanied by meaningful standards for safeguarding the environment is straightforward.
Yet the majority of the three-judge panel deemed the appeal frivolous and ordered the organizations to pay legal fees incurred by Martin County, the state Department of Community Affairs and the developers.
The court agreed with the county and developers that the land-use change wouldn't generate sprawl because homes would be clustered on smaller lots with open space set aside for agriculture, conservation or parks.
That arrangement may well be appropriate.
But it is not frivolous for the contesting groups to seek more specific guidelines for allowing extensive development outside the urban service boundary, particularly given Florida's history of allowing piecemeal development to gobble up the countryside and generate costs for taxpayers. The contested change would allow landowners with more than 500 acres to develop more densely — if they set aside half the acreage for conservation. A lot of land would be affected.
Urban service boundaries are established to steer construction where local governments can economically provide services. Do the judges think it frivolous to achieve meaningful urban service boundaries? Or curtail local governments' future financial commitments?
Paul Hawkes and Brad Thomas were the judges who took the harsh stand. The former legislative staffers also led the charge for the construction of the opulent "Taj Mahal" courthouse in Tallahassee.
Judge William Van Nortwick was more thoughtful in his opinion. He agreed with the majority decision upholding Martin County's changes, but he did not go along with the costly penalty. He said the other judges ruled the appellants had no standing simply because the judges did not agree with them. That's an interpretation no other Florida court has adopted.
Moreover, as Richard Grosso, an attorney for the 1000 Friends of Florida, said, the ruling would make the Growth Management Act a "nullity." "No one will seek to enforce it anymore out of fear of sanctions for attorney fees."
Stopping legitimate appeals from homeowners, taxpayers, neighborhoods and other interest groups through the threat of crushing fees is a dangerous precedent that should be appealed and overturned.