The Florida Land Trust

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT JULY TERM 2001

PINECREST LAKES, INC.; and

LIMITED PARTNERSHIP,

Appellants,

v.

KAREN SHIDEL,

Appellee.

CASE NO. 4D99-2641

Opinion filed September 26, 2001

Appeal from the Circuit Court for the

Nineteenth Judicial Circuit, Martin County; Larry

Schack, Judge; L.T. Case No. 96-126 CA.

Jack J. Aiello and Ernest A. Cox, III, of

Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.,

West Palm Beach, for appellants.

Richard Grosso, General Counsel, Environmental

& Land Use Law Center, Fort Lauderdale, for

appellee.

Stephen H. Grimes and Lawrence E. Sellers, Jr.

of Holland & Knight, LLP., Tallahassee, for Amici

Curiae, National Association of Home Builders,

Florida Home Builders Association, Florida

Association of Realtors, and Association of Florida

Community Developers, Inc.

Michael L. Rosen, Tallahassee, for Amicus

Curiae, Florida Legal Foundation, Inc.

Terrell K. Arline, Legal Director, Tallahassee,

Thomas G. Pelham, Kenneth J. Goldberg and

Douglas W. Ackerman, Tallahassee, for Amici

Curiae, The Florida Chapter of the American

Planning Association, and 1000 Friends of Florida,

Inc.

FARMER, J.

The ultimate issue raised in this case is

unprecedented in Florida. The question is whether

a trial court has the authority to order the complete

demolition and removal of several multi-story

buildings because the buildings are inconsistent

with the County’s comprehensive land use plan.

We conclude that the court is so empowered and

affirm the decision under review.

a 500-acre parcel of land in Martin County and set

out to develop it in phases. Development there is

governed by the Martin County Comprehensive

the property was designated under the

Comprehensive Plan as “Residential Estate,”

meaning single-family homes on individual lots

with a maximum density of 2 units per acre

(UPA). The Comprehensive Plan provides that

“[w]here single family structures comprise the

dominant structure type within these areas, new

development of undeveloped abutting lands shall

1Originally the developer was Pinecrest Lakes, Inc.,

the entity which planned and built Phases One through

Ten. In 1997, when we reversed the first appeal in this

case for a trial de novo, the corporation transferred title

to Phase Ten to a limited partnership known as The

Villas at Pinecrest Lakes. The trial court substituted the

limited partnership for the corporation as the developer.

Consequently, when we use the term “developer” in

this opinion, we refer either to the corporation or the

limited partnership or both as the context requires.

government shall prepare a comprehensive plan of the

type and in the manner set out in this act or shall

prepare amendments to its existing comprehensive plan

to conform it to the requirements of this part in the

manner set out in this part.”).

(2)

be required to include compatible structure types

of land immediately adjacent to existing single

family development.” [e.s.]

Phases One through Nine were developed as

single-family homes on individual lots in very low

densities.

The subject of this litigation, Phase Ten, is a 21-

acre parcel between Phase One and Jensen

Beach Boulevard, a divided highway designated

both as “major” and “arterial.” Phase Ten was

designated by the Comprehensive Plan as

“Medium Density Residential” with a maximum of

8 UPA. The developer sought approval of three

different site plans before finally erecting the

buildings that are the subject of this litigation. In

1988, the developer first sought approval for an

initial scheme of 3-story apartment buildings with

a density of just under 8 UPA. Karen Shidel,

since 1986 an owner of a single-family residence

in the adjoining area of Phase One, along with

other residents, opposed the project proposed by

the developer. This initial site plan for Phase Ten

was approved by the County but never acted

upon.

Five years later the developer changed the

proposed scheme to single family residences, and

the County Commission approved a revised site

plan for 29 single-family homes with a density of

1.37 UPA. Two years after that, however, the

developer again changed its mind and returned to

its original concept of multi-family structures. This

time, the developer sought to develop 136 units in

two-story buildings, with a density of 6.5 UPA.

The County’s growth management staff

recommended that the County Commission

approve this second revised site plan for Phase

Ten. Following a hearing at which a number of

people objected to the proposal, including Shidel,

the County Commission approved the revision and

permitting the construction of 19 two-story

buildings.

Claiming statutory authority, Shidel and another

Phase One homeowner, one Charles Brooks,

along with the Homeowners Associations for

Phases One through Nine, then filed a verified

complaint with the Martin County Commission

challenging the consistency of the Development

Order with the Comprehensive Plan, requesting

response to the verified complaint, after a hearing

the County Commission confirmed its previous

decision to issue the Development Order.

Shidel and Brooks then filed a civil action in the

Circuit Court against Martin County under the

(“‘Development permit’ includes any building permit,

zoning permit, subdivision approval, rezoning,

certification, special exception, variance, or any other

official action of local government having the effect of

permitting the development of land.… ‘Development

order’ means any order granting, denying, or granting

with conditions an application for a development

permit.”).

precedent to the institution of an action pursuant to

this section, the complaining party shall first file a

verified complaint with the local government whose

actions are complained of, setting forth the facts upon

which the complaint is based and the relief sought by

the complaining party. The verified complaint shall be

filed no later than 30 days after the alleged inconsistent

action has been taken. The local government receiving

the complaint shall respond within 30 days after receipt

of the complaint. Thereafter, the complaining party may

institute the action authorized in this section. However,

the action shall be instituted no later than 30 days after

the expiration of the 30-day period which the local

government has to take appropriate action.”).

or adversely affected party may maintain an action for

injunctive or other relief against any local government

to prevent such local government from taking any

action on a development order…which materially alters

the use or density or intensity of use on a particular

piece of property that is not consistent with the

comprehensive plan adopted under this part.”).

(3)

Development Order was inconsistent with the

Comprehensive Plan. The developer intervened.

Shidel and Brooks argued that their statutory

challenge was a de novo proceeding in which the

court should decide in the first instance whether

the Development Order was consistent with the

Comprehensive Plan. Martin County and the

developer argued that the proceeding was in the

nature of appellate review in which the County’s

determination was entitled to deference and the

court should consider only whether there was

substantial competent evidence supporting the

Development Order. Basing its decision solely on

a review of the record created before the County

Commission, the trial court found that the

Development Order was consistent with the

Comprehensive Plan and entered final judgment in

favor of the developer.

At that point, the developer took stock of its

position. It had prevailed before the County

Commission and—at least initially—in the trial

court. Technically, however, its approval for the

project was not final. Developer considered

whether to proceed to construct the buildings or

instead await appellate review of the trial court’s

decision. Ultimately the developer decided to

commence construction, notwithstanding the

pendency of an appeal. Accordingly, it applied for

and received building permits for construction of

Buildings 8, 9, 10, 11 and 12, and started on each

of those buildings while the case was under

just beginning, Shidel and Brooks sent written

notice to the developer of their intention, should

they prove successful in court, to seek demolition

and removal of any construction undertaken while

judicial consideration of the consistency issue was

pending.

Appellate review did not produce the outcome

for which the developer had hoped. In 1997 we

reversed the trial court’s decision that the

County’s consistency determination complied with

the Comprehensive Plan. Poulos v. Martin

County, 700 So. 2d 163 (Fla. 4th DCA 1997).

Specifically, we concluded that section 163.3215

required de novo consideration in the trial court on

the consistency issue. Our opinion explained:

“if section 163.3215 was intended to provide for

the circuit court to conduct an appellate review

by certiorari, then the statutory language

permitting the filing of the action up to 90 days

after the granting of the development order is in

conflict with the 30 day deadline outlined under

the Florida Rules of Appellate Procedure.”

700 So. 2d at 165. We further adopted an analysis

by Judge Wentworth as to the meaning of section

163.3215:

“the…language in the statute…provides only for

a suit or action clearly contemplating an

evidentiary hearing before the court to

determine the consistency issue on its merits in

the light of the proceedings below but not

confined to the matters of record in such

proceedings.”

700 So. 2d at 166 (quoting from Gregory v. City

of Alachua, 553 So. 2d 206, 211 (Fla. 1st DCA

1989) (Wentworth, J., dissenting)). We remanded

the case for a trial de novo and for any

appropriate relief.

s tages: the first stage involved a determination

whether the Development Order was consistent

with the Comprehensive Plan; and the second

stage, which became necessary, addressed the

remedy. While the case was pending on remand,

developer continued with construction. The

County conducted final inspections of Building 11

and 12, issuing certificates of occupancy (CO),

and residents moved into the buildings. At the end

of the consistency phase, the trial court entered a

partial judgment finding that the Development

6We express no view on the propriety of Martin

County issuing building permits while the case was

pending in court.

7The original judge assigned to the case was rotated

into another division, so the case was assigned to a

new judge.

(4)

Order was not consistent with the Comprehensive

Plan. The trial de novo then proceeded to the

remedy.

At the conclusion of the remedy phase, the trial

court entered a Final Judgment. The court found

that the Comprehensive Plan established a

hierarchy of land uses, paying deferenc e to lower

density residential uses and providing protection to

those areas. The “tiering policy” required that, for

structures immediately adjacent to each other, any

new structures to be added to the area must be

both comparable and compatible to those already

significant differences between the northern tier of

Phase One and the adjacent southern tier of

Phase Ten. The structures in Phase One were

single level, single family residences, while the

structures in Phase Ten were two-story apartment

buildings with eight residential units. Therefore,

the court found, the 8-residential unit, two-story,

apartment buildings in Phase Ten were not

compatible or comparable types of dwelling units

with the single family, single level residences in

Phase One; nor were they of comparable density.

Consequently, the court determined, the

Development Order was inconsistent with the

Comprehensive Plan.

As regards the remedy, the Final Judgment

found no evidence indicating that either Brooks or

the Homeowners Association were damaged by

any diminution in value. The court found that the

Homeowners Association was not a person within

the meaning of section 163.3215(2) and therefore

had no standing to seek relief under section

163.3215. Accordingly, only plaintiff Shidel was

entitled to seek injunctive relief under section

163.3215.

In granting such relief, the court found that the

developer had acted in bad faith. Specifically, the

court found that the developer continued

construction during the pendency of the prior

appeal and continued to build and lease during the

trial—even after losing on the consistency issue.

The court found that the developer “acted at [its]

own peril in doing precisely what this lawsuit

sought to prevent and now [is] subject to the

power of the court to compel restoration of the

status prior to construction.” The relief awarded

was:

(1) the Court permanently enjoined Martin

County from taking any further action on the

subject Development Order for Phase Ten,

other than to rescind it;

(2) the Court permanently enjoined developer

and its successors in interest from any further

development of Phase Ten under the subject

Development Order; and

(3) the Court ordered developer to remove all

apartment buildings from Phase Ten either

through demolition or physic al relocation by a

date certain.

When the Final Judgment was entered, five of the

eight-unit buildings had been constructed in Phase

Ten (Buildings 8-12). Buildings 11 and 12 had

already received their CO’s, and fifteen of their

sixteen units were actually occupied. Building 10

was fully completed and was awaiting final

inspection as of the date the remedies stage of

trial began. Buildings 8 and 9 were 50% and 66%

completed, respectively, also as of that date.

Following the entry of Final Judgment, the

developer filed this timely appeal and moved for

8“A project immediately adjacent to lands used or

designated for lower intensity use should be given

lesser density. (1) For that portion of said project

abutting the existing development or area of lesser

density, a density transition zone of comparable

density and compatible dwelling unit types shall be

established [e.s.] in the new project for a depth from the

shared property line that is equivalent to the depth of

the first tier of the adjoining development’s lower

density (i.e. the depth of the first block of single-family

lots).” Comprehensive Plan, § 4-5(A)(2)(b).

9Neither Charles Brooks nor Martin County has

appealed the final judgment, or filed a brief in this

appeal by Karen Shidel.

(5)

stay only as to the demolition order, allowing

lessees to continue in possession of those

apartments in Buildings 9-12 under actual lease

when the trial court entered final judgment, as well

as to those leases in Building 8 in existence as of

the date of filing of the notice of appeal. The

developer was prohibited, however, from entering

into any renewals of existing leases upon

expiration of the original term or any new leases

of any apartments. Upon review, we affirmed the

stay order. We now explain our decision on the

merits.

Initially the developer argues that the trial court

erred in the consistency phase by failing to accord

any deference to the County Commission’s

interpretation of its own Comprehensive Plan

when the County approved the second revised site

plan and its multi-story, multi-family buildings.

Conceding that the proceedings are de novo and

that the Development Order is subject to “strict

scrutiny” under the Comprehensive Plan as to the

consistency issue, the developer nevertheless

argues that the courts must bow to the County’s

interpretation of its own Comprehensive Plan and

the application of its many elements to the site

plan. Developer argues that the statutes and

cases accord such deference to a local

government’s interpretation of its own

Comprehensive Plan and that it was reversible

error for the trial court in this case to fail to do so.

In partic ular, developer relies on Southwest

County, 502 So. 2d 931 (Fla. 4th DCA 1987), and

Jacksonville, 559 So. 2d 252 (Fla. 1st DCA

1990). According to developer, these cases

authorize the use of the highly deferential “fairly

debatable” standard of review—customary with

zoning decisions—to land use determinations such

as the issue of consistency in this case. We

disagree.

As we have already seen in this dispute, the

applicable statute provides that:

“[a]ny aggrieved or adversely affected party

may maintain an action for injunctive or other

relief against any local government to prevent

such local government from taking any action on

a development order…which materially alters

the use or density or intensity of use on a

particular piece of property that is not consistent

with the comprehensive plan….”

§ 163.3215(1), Fla. Stat. (2000). This statute

obviously creates an action for an injunction

against the enforcement of a development order,

rather than to carry out such an order. The

statute is aimed at development orders—which, by

their very nature, must have been approved by a

local government—so it is clear that the

Legislature did not mean that local governments or

developers would be the parties seeking injunctive

relief under this provision.

Moreover there is but one basis for issuing the

injunction: that the development order is not

consistent with the Comprehensive Plan to the

detriment of adjoining property owners. Hence

the issuance of an injunction under section

163.3215(1) necessarily requires the judge to

determine in the first instance whether a

development order is consistent with the

Comprehensive Plan. When a statute authorizes a

citizen to bring an action to enjoin official conduct

that is made improper by the statute, and that

same statute necessitates a determination by the

judge in the action as to whether the official’s

conduct was improper under the statute, as a

general matter the requirement for a determination

of the propriety of the official action should not be

understood as requiring the court to defer to the

official whose conduct is being judged. While the

Legislature could nevertheless possibly have some

reason to require some deference to the officials

whose conduct was thus put in issue, we would

certainly expect to see such a requirement of

deference spelled out in the statute with

unmistakable clarity. Here it is not a question of

any lack of clarity; the statute is utterly silent on

the notion of deference. It is thus apparent that

(6)

the structure and text of the statute do not

impliedly involve any deference to the decision of

the county officials. So we necessarily presume

Section 163.3194 requires that all development

conform to the approved Comprehensive Plan, and

that development orders be consistent with that

command to cities and counties that they must

comply with their own Comprehensive Plans after

they have been approved by the State. The

statute does not say that local governments shall

have some discretion as to whether a proposed

development should be consistent with the

Comprehensive Plan. Consistency with a

Comprehensive Plan is therefore not a

discretionary matter. When the Legislature wants

to give an agency discretion and then for the

courts to defer to such discretion, it knows how to

say that. Here it has not. We thus reject the

developer’s contention that the trial court erred in

failing to defer to the County’s interpretation of its

own comprehensive plan.

Before we proceed to assess the trial court’s

determination on the consistency issue, we pause

to consider the history of the land development

statutes. The State of Florida did not assert

meaningful formal control over the explosive and

unplanned development of land in this state until

the passage of the first growth management

statute, the Local Government Comprehensive

Planning Act of 1975. Chapter 75-257, Laws of

Fla. (the 1975 Act). The 1975 Act forced

counties and cities to adopt comprehensive plans,

but they were left to interpret such plans for

themselves, largely free from effective oversight

by the state. See, e.g., City of Jacksonville

Beach v. Grubbs, 461 So. 2d 160, 163 (Fla. 1st

DCA 1984) (determination of when to conform

more restrictive zoning ordinances with

Comprehensive Plan is legislative judgment to be

made by local governing body, subject only to

limited judicial review for patent arbitrariness).

The requirement of adopting a Comprehensive

Plan was, therefore, only a small step. Moreover

nothing in the legislation required local

governments to comply with their own

Comprehensive Plans or that all development be

consistent with the Plan.

By the early 1980’s it was widely recognized

10To illustrate the point, we draw an analogy. The

action by a county approving a development order

could fairly and logically be compared to the actions of

administrative agencies generally. Thus we might

contrast section 163.3215(1) with comparable provisions

of the Administrative Procedures Act. Section 120.68

generally grants parties in agency proceedings access

to a court after the agency has finally acted. Section

120.68(4), however, limits review to the record in

agency. There is no similar provision in section

163.3215. Moreover section 120.68(7) spells out in

precise detail exactly what the reviewing court can do.

Among its provisions is the following:

“The court shall remand a case to the agency for

further proceedings consistent with the court’s

decision or set aside agency action, as appropriate,

when it finds that … (b) The agency’s action

depends on any finding of fact that is not supported

by competent, substantial evidence in the record of

a hearing conducted pursuant to ss. 120.569 and

120.57; however, the court shall not substitute its

judgment for that of the agency as to the weight of

the evidence on any disputed finding of fact … (e)

the agency’s exercise of discretion was: 1. outside

the range of discretion delegated to the agency by

law; 2. inconsistent with agency rule; 3. inconsistent

with officially stated agency policy or a prior agency

practice, if deviation therefrom is not explained by the

agency; or 4. otherwise in violation of a

constitutional or statutory provision; but the court

shall not substitute its judgment for that of the

agency on an issue of discretion.” [e.s.]

§ 120.68(7), Fla. Stat. (2000). There is nothing even

remotely comparable in section 163.3215.

comprehensive plan…has been adopted in conformity

with this act, all development undertaken by, and all

actions taken in regard to development orders by,

governmental agencies in regard to land covered by

such plan or element shall be consistent with such plan or element as adopted.”). [e.s.]

(7)

that the 1975 Act was proving ineffectual in

regulating Florida’s development. See Reid

Ewing, Florida’s Growth Management

(2000). The lack of state control over

interpretation of the Comprehensive Plan was

often cited as a serious deficiency. As one such

criticism described the situation:

“[f]rustration grew at the state level as well.

Lacking the actual power to approve or

disapprove local planning decisions, state and

regional planners could not effectively

coordinate and oversee local planning and

regulation. Local governments changed their

plans ‘willy-nilly virtually every time a city

council or county commission met...’ ”

John M. DeGrove, State and Regional Planning

Jurisdictions, C390 ALI– ABA 397, 428 (1994).

For another thing, the 1975 Act was criticized

for failing to give affected property owners and

citizen groups standing to challenge the land

development decisions of local governments on the

grounds that they were inconsistent with the

Comprehensive Plan. The standing issue was

considered in Citizens Growth Management

West Palm Beach, 450 So. 2d 204 (Fla. 1984)

(CGMC). CGMC involved a challenge by a

citizens group to a local decision to allow the

construction of a large scale residential and

commercial complex. The court began by

referring to Renard v. Dade County, 261 So.2d

832 (Fla. 1972), holding that standing to challenge

local development decisions was limited to the

highly deferential “fairly debatable” standard.

Affected property owners in the vicinity of new

development had no standing to seek enforcement

of local comprehensive plans unless they could

“prove special damages different in kind from that

suffered by the community as a whole.” 261 So.

2d at 834. The CGMC court determined that the

1975 Act did not change these rules on standing.

450 So. 2d at 208. The court reasoned that

because the 1975 Act “did not specifically address

the question” of standing, the statute was not

meant to alter the common law standing

requirements set forth in Renard. 450 So. 2d at

206-07.

Again, to return to the criticism, this limitation on

standing to enforce local planning laws resulted in:

“a failure to conform development decisions to

the plan based upon the fact that citizens lacked

standing to challenge development orders for

lack of consistency with the comprehensive

plan.”

James C. Nicholas & Ruth L. Steiner, Growth

Management and Smart Growth in Florida, 35

Daniel W. O'Connell, Growth Management in

property owners in the area of newly permitted

development could not challenge a project on the

grounds that it would be inconsistent with the

Comprehensive Plan, that eliminated the only real

check on local government compliance—a

challenge by those most directly affected by a

proposed development.

The growing pressure for a fundamental change

in the growth management law is reflected in the

following statement made just prior to the

Legislature’s adoption of the current law in 1985:

“In response to this lack of citizen standing, a

citizen initiative began last year and thousands of

signatures were collected around the state to

bring the standing issue to a referendum vote.

The petition specific ally calls for a referendum

on the issues of giving citizens a right in the state

constitution to environmental health and welfare

and providing them with legal standing to sue if

government at the local, regional, or state level

is not doing its job.

“That initiative fell just a few thousand

signatures short of the required number for

qualifying for a referendum in 1984. However,

(8)

the initiative is continuing, and I feel confident that

the issue will be brought to the voters of the state

in 1985 unless the legislature addresses the issue

more effectively than it did last year.”

Kathleen Shea Abrams, An Environmental Word,

Clearly the pressure from a “civically militant

electorate” was growing, and the elected

representatives took notice of it. The result was

the Growth Management Act of 1985. Chap. 85-

55, Laws of Fla. This is essentially the statute we

have today, parts of which have been cited in

provision for our purposes was section 163.3215,

the provision used by Shidel to bring this action

into court.

In Southwest Ranches, we observed that

section 163.3215 had liberalized standing

requirements and demonstrated “a clear legislative

policy in favor of the enforcement of

comprehensive plans by persons adversely

affected by local action.” 502 So. 2d at 935. In

Parker v. Leon County, 627 So. 2d 476, 480 (Fla.

1993), the court held that “the legislature enacted

section 163.3215 to ensure the standing for any

person who ‘will suffer an adverse effect to an

interest protected ... by the ... comprehensive

plan.’ ” 627 So. 2d at 479. The Parker court

quoted with approval the above passage from

Southwest Ranches. 627 So. 2d at 479. See also

County Comm’rs of Putnam County, 757 So. 2d

590, 593 (Fla. 5th DCA 2000) (“That standard

changed, however, with the 1985 adoption of

section 163.3215, which liberalized the standing

requirements and ‘demonstrat[ed] a clear

legislative policy in favor of the enforcement of

comprehensive plans by persons adversely

affected by local action.’”). Thus, the criticism

described above certainly was of great influence

in the 1985 Legislature’s formulation of the new

standing provision. Affected citizens have been

given a significantly enhanced standing to

challenge the consistency of development

decisions with the Comprehensive Plan.

The Growth Management Act of 1985 was

discussed in what is now recognized as the most

significant land use decision by the supreme court

in the past decade, namely Board of County

Commissioners of Brevard County v. Snyder,

627 So. 2d 469 (Fla. 1993). Snyder involved a

parcel then zoned only for single family homes and

a proposed development of 5-6 units. The

proposal also necessarily required a change of

zoning. After substantial opposition, and in spite of

a favorable staff recommendation, the County

voted to deny the request without giving any

reasons. Certiorari was denied in the circuit court,

one judge dissenting. The Fifth District held that

rezoning actions entailing the application of a

general rule or policy to specific individuals,

interests, or activities are quasi-judicial in nature

and should be subjected to a stricter standard of

judicial review. The court found that the proposed

site plan was consistent with the Comprehensive

Plan, that there was no evidence supporting the

denial of any necessary rezoning, and that the

denial of the request without giving any reasons

was arbitrary and unreasonable.

After granting review, the supreme court was

first concerned with the level of review given by

the courts to such proceedings. The county took

the position that it had been faced with primarily a

legislative judgment because the landowner sought

rezoning. As the court noted:

“Both federal and state courts adopted a highly

deferential standard of judicial review early in

the history of local zoning. In Village of Euclid

v. Ambler Realty Co., 272 U.S. 365 (1926), the

United States Supreme Court held that ‘[i]f the

validity of the legislative classification for zoning

purposes be fairly debatable, the legislative

judgment must be allowed to control.’ This

Court expressly adopted the fairly debatable

principle in City of Miami Beach v. Ocean &

Inland Co., 147 Fla. 480, 3 So.2d 364 (1941).”

text.

(9)

[c.o.]

627 So. 2d at 472. The court went on to note,

however, that this tolerant form of judicial review

had not proved satisfactory:

“Inhibited only by the loose judicial scrutiny

afforded by the fairly debatable rule, local zoning

systems developed in a markedly inconsistent

manner. Many land use experts and

practitioners have been critical of the local

zoning system. Richard Babcock deplored the

effect of ‘neighborhoodism’ and rank political

influence on the local decision-making process.

Richard F. Babcock, The Zoning Game (1966).

Mandelker and Tarlock recently stated that

‘zoning dec isions are too often ad hoc, sloppy

and self-serving decisions with well-defined

adverse consequences without off-setting

benefits.’ Daniel R. Mandelker and A. Dan

Tarlock, Shifting the Presumption of

627 So. 2d at 472-73.

The court explained that in Florida the 1975 Act

“was substantially strengthened by the Growth

Management Act [of 1985].” 627 So. 2d at 473.

After analyzing various provisions of the Growth

Management Act of 1985, the court stated:

“We also agree with the court below that the

review is subject to strict scrutiny. In practical

effect, the review by strict scrutiny in zoning

cases appears to be the same as that given in

the review of other quasi-judicial decisions. See

Partnership, 619 So.2d 996 (Fla. 2d DCA1993)

(The term ‘strict scrutiny’ aris es from the

necessity of strict compliance with

comprehensive plan.). This term as used in the

review of land use decisions must be

distinguished from the type of strict scrutiny

review afforded in some constitutional cases.

Comm'rs, 595 So.2d 65, 75-76 (Fla. 5th

DCA1991) (land use), and Machado v.

Musgrove 519 So.2d 629, 632 (Fla. 3d

DCA1987), review denied, 529 So.2d 693

(Fla.1988), and review denied, 529 So.2d 694

(Fla.1988) (land use), with In re Estate of

Greenberg, 390 So.2d 40, 42-43 (Fla.1980)

(general discussion of strict scrutiny review in

context of fundamental rights), appeal

dismissed, 450 U.S. 961 (1981), Florida High

Sch. Activities Ass'n v. Thomas, 434 So.2d 306

(Fla.1983) (equal protection), and Department

America, Inc., 604 So.2d 459 (Fla.1992) (First

Amendment).” [e.s.]

627 So. 2d at 475.

In the foregoing quotation the supreme court

drew a distinction between the use of strict

scrutiny in land use cases and its use in other

contexts. The court approved the analyses of the

Fifth District in Snyder and the Third District in

Machado v. Musgrove, 519 So. 2d 629, 632 (Fla.

3d DCA 1987), review denied, 529 So. 2d 693

(Fla.), review denied, 529 So. 2d 694 (Fla. 1988),

regarding land use decisions. These courts

explained that strict scrutiny of local government

development orders is necessary to insure that the

local governments comply with the duty imposed

by section 163.3194 to make decis ions consistent

with the Comprehensive Plan. In discussing the

difference between a developer aggrieved by a

land use decision of local government and an

affected property owner in the vicinity aggrieved

by a proposed new development, the Snyder court

emphasized that section 163.3215 “provides a

remedy for third parties to challenge the

consistency of development orders.” 627 So. 2d

at 475.

As one pair of writers put it, “Snyder changed

the rules of the game for local government land

use approvals.” John W. Howell & David J.

Russ, Planning vs. Zoning: Snyder Decision

1994, at 16. And another pair noted:

“The easygoing ‘fairly debatable’ test for sitespecific

rezonings was abandoned and the ‘strict

scrutiny’ standard was adopted for the review

of development orders under a county’s

(10)

comprehensive master plan.”

Lucia A. Dougherty & Elliot H. Scherker, Rights,

312 (1995). In light of this history, deferential

review of the kind advocated by developer here is

no longer the rule after Snyder.

Under section 163.3215 citizen enforcement is

the primary tool for insuring consistency of

development decisions with the Comprehensive

Plan. Deference by the courts—especially of the

kind argued by the developer in this case—would

not only be inconsistent with the text and structure

of the statute, but it would ignore the very reasons

for adopting the legislation in the first place.

When an affected property owner in the area of a

newly allowed development brings a consistency

challenge to a development order, a cause of

action—as it were—for compliance with the

Comprehensive Plan is presented to the court, in

which the judge is required to pay deference only

to the facts in the case and the applicable law. In

light of the text of section 163.3215 and the

foregoing history, we reject the developer’s

contention that the trial court erred in failing to

defer to the County’s interpretation of its own

Comprehensive Plan.

Having thus decided that the trial court was

correct in failing to accord any particular

deference to the Martin County Commission in its

interpretation of the Comprehensive Plan, we now

proceed to consider the court’s determination on

the consistency issue. The trial court explained its

decision as follows:

“The primary claim by [plaintiffs] is that the

juxtaposition of multi-story, multi-family

apartments in Phase 10 directly next to the

single family homes in Phase 1 violates a

number of provisions in the Comprehensive

Plan. The provision of the Comprehensive Plan

that is central to their argument is section 4-

5(A)(2)(b), known as the ‘tiering policy.’ [see n.

6, above]

“The tiering policy was added to the

Comprehensive Plan … to address how

development would be added to existing singlefamily

residential communities. There was a

concern … over how existing single-family

homes were being impacted by new, adjacent

denser developments. …

“The tiering policy required…a transition zone

along the southern portion of Phase 10 equal to

‘the depth of the first block of single-family lots’

within the northern portion of Phase 1. The

section requires that development in the first tier

of Phase 10 be limited to construction ‘of

comparable density and compatible dwelling unit

types.’ The court finds that the appropriate

measure is 225 feet, using the shortest average

depth method of computation.

“No transition zone was established for Phase

10. The buildings along the first tier of Phase 10

are multi-family, multi-story, and have balconies.

The southern tier of Phase 10 has a density of

6.6 [UPA]. The overall density of Phase 10 is

6.5 [UPA]. There is no meaningful difference

in density across the entire western portion of

Phase 10. The northern tier of Phase 1, on the

other hand, is comprised entirely of single-family

homes on 0.75 acre to 1.2 acre lots, with a

“There was no first tier transition zone

established for Phase 10 as mandated by section

4-5(A)(2)(b). That section is not the only

provision of the Comprehensive Plan that

mandated compatible structures within the first

tier of Phase 10. Section 4-4(M)(1)(e)(2)

provided:

… Where single family structures comprise

the dominant structure type within [residential

estate densities (RE-0.5A)], new development

on undeveloped abutting lands shall be

13At this point in the Final Judgment, the court went

on to show in a comparative table that the change in

density between the two tiers represented a 560%

difference, the change in population a 492% difference,

and the number of units a 418% difference.

(11)

required to include compatible structure types of

lands immediately adjacent to existing family

development.

… Phase 1 is designated RE-0.5A

…

“It is impossible … to examine the photographs

of the homes in the northern tier of Phase 1, and

the apartment buildings in the southern tier of

Phase 10, and find that they are either

‘compatible dwelling unit types’ or ‘compatible

structure types.’ The only residential structure

that could be less compatible with the northern

tier of Phase 1, would be a multi-story

condominium building. There is no compatibility

between the structures in the southern tier of

Phase 10 and the northern tier of Phase 1.

Further, an examination of the density of

development in the two tiers at issue, precludes

this court from finding that they are in any way

comparable.

…

“[B]uffering does not grant relief to the

[developer] under section 4-4(I)(5). That

section deals with buffering between

‘incompatible land uses.’ The more specific

Tiering Policy mandates compatibility. More

importantly, even to the extent that the

Comprehensive Plan might, in some instances,

provide a builder with the ability to buffer

changes in density, intensity or uses, the

language of sections 4-4(M)(1)(e)(2) and 4-

5(A)(2)(b) simply do not permit the type of

development that is under construction in Phase

10.”

…

“Based on the foregoing, the Court finds that

the Development Order is inconsistent with the

Comprehensive Plan. It is not compatible with,

nor does it further the objective, policies, land

uses, densities and intensities in the

Comprehensive Plan. § 163.3194(3)(a).” [e.o.]

We have carefully reviewed the record of the

trial and the evidence presented. It is apparent

that there is substantial competent evidence to

support these findings. Developer argues that the

court erred in its interpretation of the “tiering

policy,” in deeming it a mandatory requirement

rather than a discretionary guide. We conclude

that the trial court’s construction is consistent with

the plain meaning of the text of the

Comprehensive Plan. See Comprehensive Plan,

§ 4-5(A)(2)(b) (“a density transition zone of

comparable density and compatible dwelling unit

types shall be established in the new project for a

depth from the shared property line that is

equivalent to the depth of the first tier of the

adjoining development’s lower density (i.e. the

depth of the first block of single-family lots).”).

Moreover, given the evidence as to Martin

County’s adoption of the tiering policy, the record

clearly supports the finding that the policy was

intended to be applied in all instances of projects

abutting single-family residential areas. We

therefore affirm the finding of inconsistency and

proceed to explain our decision on the remedy.

Developer challenges what it terms the

“enormity and extremity of the injunctive remedy

imposed by the trial court.” It argues that the trial

court’s order requiring the demolition of 5 multifamily

residential buildings is the most radical

remedy ever mandated by a Florida court because

of an inconsistency with a Comprehensive Plan.

Specifically, the contention is that the trial judge

failed to balance the equities between the parties

and thus ignored the evidence of a $3.3 million

dollar loss the developer will suffer from the

demolition of the buildings. The court failed to

consider alternative remedies in damages, it

argues, that would have adequately remedied any

harm resulting from the construction of structures

inconsistent with the Comprehensive Plan.

Developer maintains that the trial court

erroneously failed to give meaningful consideration

to the traditional elements for the imposition of

injunctive relief. It contends that the trial court

proceeded on an erroneous conclusion that where

an injunc tion is sought on the basis of a statutory

violation, no proof is required as to the traditional

(12)

elements for an injunction.

Traditionally, as the trial judge noted, it is true

that injunctions are usually denied where the party

seeking such relief fails to demonstrate a clear

legal right, a particular harm for which there is no

adequate remedy at law, and that considerations

of the public interest would support the injunction.

See, e.g., St Lucie County v. St. Lucie Village,

603 So. 2d 1289, 1292 (Fla. 4th DCA 1992).

These are, of course, the necessary ingredients for

equitable relief when we labor in the interplay of

common law and equity, where ordinary legal

remedies are unavailing.

Nonetheless, as between the State legislature

and the several counties, the Legislature is the

dominant creator of public duties and citizen

sole power to create such public duties and citizen

rights, it logically follows that the Legislature is

necessarily endowed with the authority to spec ify

precisely what remedies shall be used by judges to

enforce a statutory duty—regardless of whether

in general usage such a remedy usually requires

additional factors before it is traditionally

employed.

When the Legislature creates a public duty and

a corresponding right in its citizens to enforce the

duty it has created, and provides explicitly that the

remedy of vindication shall be an injunction, the

Legislature has not thereby encroached on judicial

powers, as the courts held in Harvey v.

Wittenberg, 384 So. 2d 940 (Fla. 3rd DCA 1980),

and Times Publishing Co. v. Williams, 222 So. 2d

470 (Fla. 2d DCA 1969). The Times Publishing

court explained its theory of encroachment thus:

“Injunctive relief is an extraordinary remedy

which issues only when justice requires and

there is not adequate remedy at law, and when

there is a real and imminent danger of

irreparable injury. Statutory authority for such

writs, as in the act before us, are not

uncommon; but it must be remembered that

such writs are in the first instance judicial writs.

If such statutes purport to give the circuit courts

injunctive power they are ineffectual, since

those courts are otherwise vested with such

powers under the constitution, § 6(3) Art. V

Constitution of Florida; and if they purport to

dictate to such courts when, how or under what

conditions injunctions should issue they would

constitute an unlawful legislative infringement on

a judicial function.” [e.s.]

222 So. 2d at 476. Times Publishing and Harvey

both held that the Legislature is limited to

specifying certain harms as irreparable, but the

court alone has the discretion to determine

whether the injunction should otherwise issue. We

disagree with this analysis.

We think that is too wooden a construction of

legislative powers where a statute is concededly

valid. In our view when the Legislature provides

for an injunction in these circumstances, it has

deliberately made the new public duty and its

corresponding right of enforcement an integrated

statutory prescription. By specifying that the

public interest requires that a certain duty be

vindicated in the courts and not primarily within

other branches of government, the Legislature is

well within its powers. Surely the Legislature’s

primary role in defining public policy under the

constitution is broad enough to enable it to specify

a legal remedy in an enactment, regardless of

whether the traditional judicial restrictions on that

remedy in other, non-statutory contexts would limit

its usage. As the author of the primary duty, the

Legislature alone shapes the form of its

effectuating mechanism.

In section 163.3215, we think the Legislature

has constructed such a statute. The statute leads

off with a declaration that:

“Any aggrieved or adversely affec ted party

may maintain an action for injunctive or other

charter or non-charter government, Counties are

granted power to enact only ordinances that are “not

inconsistent with general law”).

(13)

relief against any local government to prevent

such local government from taking any action on

a development order, as defined in s. 163.3164,

which materially alters the use or density or

intensity of use on a particular piece of property

that is not consistent with the comprehensive plan

adopted under this part.”

From the plain and obvious meaning of this text

we discern only two elements to the granting of an

injunction against the enforcement of a

development order: (a) the party is affected or

aggrieved by (b) an approved project that is

inconsistent with the Comprehensive Plan. In

short, the existence of an affected neighbor is all

that is necessary for the issuance of an injunction

against a proposed land use that is inconsistent

with the Comprehensive Plan.

We note that the statute does not say that the

affected/aggrieved party bringing the action

“creates a presumption of irreparable injury” by

showing an inconsistency with the Plan. See, e.g.,

§ 542.335(1)(j), Fla. Stat. (2000) (“The violation of

an enforceable restrictive covenant creates a

presumption of irreparable injury to the person

seeking enforcement of a restrictive covenant.”).

When the Legislature wants to make a lesser

intrusion on traditional equitable jurisdiction, it

obviously knows how to do so. Here the statutory

text makes the injunction the first and preferred

remedy to alleviate the affects of in inconsistent

land use. Hence, we read the statute to make the

injunction the presumed remedy where the

We disagree with the developer’s contention

that this statute was meant to create mere

discretion in the court to issue an injunction. If

injunctive relief is the specified, primary remedy to

correct a violation of a public duty and to vindicate

the right of a person affected by the violation of

that duty, it can properly be deemed a rule that the

Legislature has created, not a grant of discretion.

Here the Legislature has devised an entire

statutory scheme to insure that all counties have a

Comprehensive Plan for the development of land

within their respective jurisdictions. The scheme

creates mandatory duties to have a plan,

mandatory duties to have the plan approved by the

state, and once approved mandatory duties to limit

all developments so that they are consistent with

the plan’s requirements. At the end of all these

mandatory duties—all these shalls—comes a new

relaxation of the requirements on standing for

citizen suits to enforce comprehensive land use

15We reject developer’s argument that demolition is

improper simply because Shidel failed to seek a

temporary injunction against any construction while

the case proceeded in court on the consistency issue.

In the first place, when the action was filed the trial

court originally thought its role limited to a record

review of the proceedings before the Martin County

Commission and concluded that no error had been

shown. Having decided there was no error in the

limited review it thought applicable, the trial court was

hardly likely to grant a temporary injunction while the

case was on appeal.

Even more important, however, we find nothing in the

text of the relevant statutes making such a request for

a temporary injunction a precondition to effective final

relief after a trial de novo when the court finds that the

permitted use is inconsistent with the Comprehensive

Plan. We note from other statutes that when the

Legislature means to place restrictions on third party

challenges to agency decisions granting permits, it

says so in specific text. Compare § 403.412(2)(c), Fla.

Stat. (2000), with § 163.3215(4), Fla. Stat. (2000), as to

preconditions for suit; see also § 163.3215(6), Fla. Stat.

(2000) (“The signature of an attorney or party

constitutes a certificate that he or she has read the

pleading, motion, or other paper and that, to the best of

his or her knowledge, information, and belief formed

after reasonable inquiry, it is not interposed for any

improper purpose, such as to harass or to cause

unnecessary delay or for economic advantage,

competitive reasons or frivolous purposes or needless

increase in the cost of litigation. If a pleading, motion,

or other paper is signed in violation of these

requirements, the court, upon motion or its own

initiative, shall impose upon the person who signed it,

a represented party, or both, an appropriate sanction,

which may include an order to pay to the other party or

parties the amount of reasonable expenses incurred

because of the filing of the pleading, motion, or other

paper, including a reasonable attorney's fee.”).

(14)

plans and providing for the issuance of injunctions

when an inconsistency affects another land

owner. Judicial construction of that sole remedy

as discretionary strikes us as remarkably

inconsistent with not only the text of the statute

itself but also with the purpose of the entire

legislative scheme.

Developer lays great stress on the size of the

monetary loss that it claims it will suffer from

demolition, as opposed to the much smaller

diminution in value that the affected property

owner bringing this action may have suffered. It

contends that a $3.3 million loss far outweighs the

evidence of diminution in the value of Shidel’s

property, less than $26,000. Its primary contention

here is that the trial judge erred in failing to weigh

these equities in its favor and deny any remedy of

demolition. Instead, as developer sees it, the court

should have awarded money damages to eliminate

the objector’s diminution in value. Developer also

argued that instead of demolition it should be

allowed to build environmental barriers, green

areas of trees and shrubbery, between the

apartment buildings and the adjoining area of

single family homes.

Developer emphasizes that we deal here with an

expensive development: “a high quality, upscale

project;” “forty units of high-quality garden

apartments;” “five upscale multi-family dwellings,

housing 40 garden apartments, at a value of

approximately $3 million.” Developer concedes

that there is evidence showing that plaintiff

Shidel’s property is diminished by $26,000. It also

concedes that the total diminution for all the homes

bordering its project is just under $300,000.

Developer contends, however, that the real

countervailing harm to all these affected property

owners in the vicinity is not any diminution in the

value of their homes, but instead is merely

“knowing that there is an upscale apartment

building approximately a football field away,

partially visible through some trees behind the

house.”

Section 163.3215 says nothing about weighing

these specific equities before granting an

injunction. If the Legislature had intended that

injunctive enforcement of comprehensive plans in

the courts be limited to cases where such

imbalances of equities were not present, we

assume that it would have said so. As important,

such balancing if applied generally would lead to

substantial non-compliance with comprehensive

plans. We doubt that there will be many instances

where the cost of the newly allowed construction

will be less than any diminution resulting from an

inconsistency. Entire projects of the kind

permitted here will frequently far exceed the

monetary harms caused to individual neighbors

affected by the inconsistency. In other words, if

balancing the equities—that is, weighing the loss

suffered by the developer against the diminution in

value of the objecting party—were required

before demolition could be ordered, then

demolition will never be ordered.

Moreover it is an argument that would allow

those with financial resources to buy their way out

of compliance with comprehensive plans. In all

cases where the proposed use is for multiple acres

and multiple buildings, the expenditures will be

great. The greater will be its cost, and so will be

a resulting loss from an after-the-fact demolition

order. The more costly and elaborate the project,

the greater will be the “imbalance in the equities.”

The more a developer is able to gild an

inconsistency with nature’s ornaments—trees,

plants, flowers and their symbiotic fauna—the

more certain under this argument will be the result

that no court will enjoin an inconsistency and

require its removal if already built.

In this case the alleged inequity could have been

entirely avoided if developer had simply awaited

the exhaustion of all legal remedies before

undertaking construction. It is therefore difficult

to perceive from the record any great inequity in

requiring demolition. Shidel let the developer

know when it was just beginning construction of

the first building that she would seek demolition if

(15)

the court found the project inconsistent. When

developer decided to proceed with construction in

spite of the absence of a final decision as to the

merits of the challenge under section 163.3215, the

developer was quite able to foresee that it might

lose the action in court. It could not have had a

reasonable expectation that its right to build what

it had proposed was finally settled. It may have

thought the decision to build before the

consistency question was settled in court a

reasonable “business decision,” but that hardly

makes it inequitable to enforce the rule as written.

It also seems quite inappropriate, if balancing of

equities were truly required by this statute, to

focus on the relatively small financial impacts

suffered by those adjoining an inconsistent land

use. The real countervailing equity to any

monetary loss of the developer is in the flouting of

the legal requirements of the Comprehensive Plan.

Every citizen in the community is intangibly

harmed by a failure to comply with the

Comprehensive Plan, even those whose properties

may not have been directly diminished in value.

We claim to be a society of laws, not of

individual eccentricities in attempting to evade the

rule of law. A society of law must respect law,

not its evasion. If the rule of law requires land

uses to meet specific standards, then allowing

those who develop land to escape its requirements

by spending a project out of compliance would

make the standards of growth management of

little real consequence. It would allow developers

such as this one to build in defiance of the limits

and then escape compliance by making the cost of

correction too high. That would render section

163.3215 meaningless and ineffectual.

In this regard we are drawn to the views

expressed in Welton v. 40 Oak Street Building.

Corp., 70 F.2d 377 (7th Cir. 1934), a case of

strikingly analogous facts. There the developer

applied for a permit to erect a building, and

proceeded to build while its neighbor objected to

the edifice and sought to show that the building

plans did not comply with the zoning ordinances.

When the agency approved the building he sought

relief in the courts, finally being victorious in the

state supreme court. Ownership of the building

meanwhile passed to a federal receiver, and so the

objecting neighbor sought to enforce his remedy

by injunctive relief in the federal court. The trial

judge denied an injunction. On appeal the Court of

Appeals disagreed and ordered a mandatory

injunction to “rebuild” the edifice in compliance

with the zoning law, explaining:

“We have earnestly endeavored to place

ourselves in a position to fully appreciate

appellees’ argument to the effect that

enforcement of a right which arises out of an

effort to give light and air to metropolitan areas

is an equity that is outweighed by the dollars

advanced by builders of twenty story buildings in

defiance of zoning ordinances. We have also

endeavored to obtain appellees’ viewpoint when

they propose a money judgment to one who

suffers small financial loss as satisfaction for

violation of important ordinances enacted for the

benefit of the public. In the fight for better living

conditions in large cities, in the contest for more

light and air, more health and comfort, the scales

are not well balanced if dividends to the

individuals outweigh health and happiness to the

community. Financial relief to appellants is not

the only factor in weighing equities. There is

involved that immeasurable but nevertheless

vital element of respect for, and compliance

with, the health ordinance of the city. The

surest way to stop the erection of high buildings

in defiance of zoning ordinances is to remove all

possibility of gain to those who build illegally.

Prevention will never be accomplished by

compromise after the building is erected, or

through payment of a small money judgment to

some individual whose financial loss is an

inconsequential item.”

70 F.2d at 382-83. We agree with the Seventh

Circuit that respect for law, in this case the

Comprehensive Plan, trumps any “inequity” of

financial loss arising from demolition.

(16)

Our understanding of section 163.3215 is thus

different from equity’s traditional use of its

remedies. If, as we have shown, an injunction is

the statutory remedy to insure consistency of

development of property within the county, it does

not seem to us that the kind of balancing

advocated here would further that goal. In fact it

would very likely lead to even more inconsistent

development, particularly as to the kind of large

scale projec t involved here with multiple buildings

for multiple families. As we see it, the purpose of

this statute is precisely against this kind of

thinking. A clear rule is far more likely to erase

the kind of legal unpredictability lamented by

developer and amici.

The statute says that an affected or aggrieved

party may bring an action to enjoin an inconsistent

development allowed by the County under its

Comprehensive Plan. The statutory rule is that if

you build it, and in court it later proves

inconsistent, it will have to come down. The

court’s injunction enforces the statutory scheme

as written. The County has been ordered to

comply with its own Comprehensive Plan and

restrained from allowing inconsistent development;

and the developer has been found to have built an

inconsistent land use and has been ordered to

remove it. The rule of law has prevailed.

We therefore affirm the final judgment of the

trial court in all respects.

GUNTHER and GROSS, JJ., concur.

AND

Miami-Dade County Agriculture and Rural Area Study

Task 2(b)

doc.#55985;v.2/90685.001

1

I. Introduction..................................................................................................................2

A. Task 2: Agricultural and Rural Area Retention and Promotion Strategies .............2

B. Task 2(b): Analysis of Agricultural Land Retention Strategies ..............................2

the Study Area .................................................................................................................3

II. Overview......................................................................................................................4

A. Land Use Growth Patterns .......................................................................................4

B. Agricultural Land .....................................................................................................6

C. Economic Impact of Agricultural Land ...................................................................7

D. Growth Management Challenges ............................................................................7

III. Agricultural and Rural Land Policies and Implementation Techniques..................8

A. Agricultural Zoning .................................................................................................8

1. Area Based Zoning ..............................................................................................9

2. Large Lot Zoning .................................................................................................9

3. Cluster Zoning ...................................................................................................10

4. Buffering............................................................................................................12

5. Overall Benefits and Drawbacks of Agricultural Zoning..................................14

B. Non-Zoning Techniques ........................................................................................15

1. Right-to-farm Laws ...........................................................................................15

2. Agricultural Districting......................................................................................17

3. Land Evaluation Systems ..................................................................................18

C. Land Acquisition Programs ...................................................................................20

1. Conservation Easements ....................................................................................20

2. Purchase of Development Rights.......................................................................20

3. Land Banking.....................................................................................................22

4. Transfer of Development Rights .......................................................................23

5. Florida Rural and Family Lands Protection Act ................................................26

D. Taxation Programs .................................................................................................27

1. Differential Assessment .....................................................................................27

2. Circuit Breaker Tax Relief Credits ....................................................................28

3. Real Estate Transfer Taxes ................................................................................29

E. Funding Programs..................................................................................................30

1. Impact Fees ........................................................................................................30

2. Environmental Mitigation Fees .........................................................................31

3. Federal Programs ...............................................................................................31

F. Regulatory Techniques ..........................................................................................32

1. Growth Tiers ......................................................................................................32

2. Concurrency Programs ......................................................................................33

3. Urban Service Boundaries .................................................................................34

IV. Economics and the Law.........................................................................................35

A. Economic Value of Land .......................................................................................35

B. Legal Framework ...................................................................................................35

1. Takings ..............................................................................................................36

2. Impact Fees/ Mitigation Fees.............................................................................37

3. Due Process .......................................................................................................38

V. Miami-Dade County – Value Preservation Principle ................................................38

VI. Conclusion.............................................................................................................39

Miami-Dade County Agriculture and Rural Area Study

Task 2(b)

doc.#55985;v.2/90685.001

2

The authors have prepared this analysis in completion of Task 2(b)

of the Scope of Services, “Agricultural and Rural Area Retention and

Promotion Strategies.” It is not the goal of this analysis to propose one

solution or another as appropriate to the Study Area, or to suggest one

policy approach over any other. Rather, this analysis is intended to set

forth alternative techniques that the CAC may recommend and the County

may adopt in pursuit of its overarching land use objectives in the Study

Area.

Tyson Smith, of the law firm, Freilich, Leitner & Carlisle, and coauthor

of this analysis, attended the August 21, 2002 meeting of the CAC,

presented the findings made herein, and received the initial input of the

Committee. This Report reflects the comments received at that meeting,

as well as additional comments received from other members of the

Consultant Team, staff, and the TAC.

The Task 2(c) report, “Analysis of Rural Land Uses,” presents a

case analysis of five different communities around the country that have

incorporated a number of the preservation techniques discussed in this

report. In Task 2(c) we focused on the “value preservation” mechanisms –

communities to achieve successful agriculture and rural area programs.

Value preservation mechanisms make most programs successful, due

mainly to the fact that they protect both the agricultural and the

preservation interests of the community. This Report provides an

overview of zoning and incentive driven programs that may, in the final

analysis, constitute the ultimate recommendation of the Consultant Team.

Task 2 of the Scope of Services focuses on a range of agriculture and rural area

retention, promotion, and economic development strategies. Task 2(a) presents and

analyzes information on various economic development issues; Task 2(c) introduces

related programs used in similarly situated rural areas of the country; and, finally, Task

2(d) will include a recommended approach for addressing the specific needs of Miami-

Dade County.

Miami-Dade County Agriculture and Rural Area Study

Task 2(b)

doc.#55985;v.2/90685.001

3

The goal of Task 2(b) is to present and analyze information regarding agricultural

and rural land use strategies and programs used in areas facing development pressures

similar to those in existence or anticipated in the Study Area. Section II of this Report

provides a general overview of the range of issues that underlie the overall analysis being

undertaken by the Consultant Team (the “Team”). Section III sets out numerous

agriculture and rural land use techniques that are available to the County in pursuit of its

overall rural policies. Section IV assesses the applicability and legality of various land

use policies and preservation techniques within the Study Area. And, finally, Section V

sets forth the proposed framework for analyzing or determining a policy approach that

will achieve the dual goal of this analysis: the protection of land values and the

preservation of agriculture and rural open space within the Study Area.

Preserving the value of agricultural land is imperative to ensuring long term

preservation of farming, open space, and managed growth. Farmers, growers, and

ranchers own 80 percent of the private land in Florida; land that provides wide-open

property owners are selling their land because encroaching urban uses have deemed

agricultural uses economically non-viable. When land value is diminished, future

economic development is limited. During times of economic hardship, the agricultural

landowner may have to rely on the underlying value of his or her land to make financing

arrangements to cover the cost of operations. If land values are significantly reduced, so

are refinancing opportunities, leaving the farmer in difficult financial straits. Preserving

land values is beneficial not only for the land owner, but also for the entire community;

while the farmer continues to farm, the community benefits from open space and

managed growth.

This paper concludes with a proposal for analyzing and developing a “preferred

development scenario” for achieving the long-term land use goals for the Study Area.

The authors propose that this analysis – this weighing of alternative techniques and

approaches – be conducted in light of the actual economic reality that landowners in the

Study Area will face over a twenty-year period. Simply put, that decision will be

whether to retain existing holdings in their current use, or a significant portion thereof; or

to develop those holdings at some undetermined urban or suburban density.

The framework of this analysis presumes, first, that a combination of

agriculture/rural open space preservation and reasonable development will characterize

the Study Area over the next twenty years. Second, it further presumes that this

combination of land use intensities will be defined by adopted County policies, which in

turn, may be based significantly on the recommendations of the Team and the Citizens’

Advisory Committee (the “CAC”). Third, this analysis contemplates an ultimate

“preferred development scenario” – to be determined and articulated under Task 2(d) –

that preserves both property rights and rural character, but neither at the expense of the

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other. The authors believe that reasonable policies can be drafted and implemented,

which will advance both property rights and the rural policies of the County, while

protecting land values throughout the Study Area. The Alternatives Analysis set forth at

Section V proposes a framework for arriving at that ultimate recommendation.

Florida is one of the fastest growing states in the nation, and rural lands still

7 percent of the state’s population in 1997, the growth rate of rural Florida has been

Historically, Miami-Dade County’s land use patterns have reflected patterns

across America: loss of agricultural land to urban development; rising land prices on the

urban fringe; and urban sprawl. Since World War II the greatest proportion of growth

has taken place in the urban-rural fringes of major metropolitan centers. This type of

growth has led to the depletion and deprivation of important environmental resources,

and semi-rural areas of Miami- Dade County, the character unique to the rural community

In 1985, the Florida Legislature passed into law the Local Government

Comprehensive Planning and Land Development Regulations Act (the “Growth

Management Act”). The Growth Management Act set up a public hearing and permitting

process for regional planned growth that protects important public natural resources

including rivers, lakes, springs, state parks, and rare wildlife species. The Growth

Management Act mandates comprehensive planning for local governments and vested the

Florida Department of Community Affairs (DCA) with an oversight role. From local to

regional to statewide comprehensive plans, DCA provides checks and balances to growth

and development, ensuring that developers and existing taxpayers alike foot some of the

costs associated with growth such as new schools, roads, new utilities (drinking water,

sewage treatment, electric, telephone), municipal services (fire, police, ambulance), and

The County’s Comprehensive Development Master Plan and its accompanying

Land Use Planning (LUP) map guide land use patterns in Miami-Dade County. The

Urban Development Boundary (UDB) is one of the major components of the land use

strategy in Miami-Dade County as it demarcates where urban development ends and rural

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in areas where infrastructure is available and to ensure vital natural resources are

protected outside the boundary. Development within the UDB will be approved through

LUP also has a year 2015 Urban Expansion Area (UEA) boundary. The UEA is

comprised of that area located between the 2005 UDB and the 2015 UEA boundary. It is

the area where current projections indicate that further urban development beyond the

2005 UDB boundary is likely to occur between 2005 and 2015. Until this area is brought

into the UDB area through plan and review amendment processes, parcels are allowed to

Any person or organization, including the federal government, the State of

Florida, Miami-Dade County, any municipality in Miami-Dade County and any of their

agencies, authorities and departments may request amendment of the UDB and UEA.

The County Commission must review the Comprehensive Development Master Plan

every two years and any proposed amendment to the UDB may only be submitted in odd

Commission must meet all the requirements of the Growth Management Act and will

consider issues such as population trends, demand on urban services, levels of service

available, development right demand, infill potential, environmental and agricultural

resources, and above all concurrency, which demands that local government phase

development so it occurs only after urban facilities or infrastructure have been provided.

In December of 1996, the Miami-Dade County Board of County Commissioners

passed Resolution No. 1477-96 establishing an Infill Strategy Task Force to study

opportunities and strategies to promote infill within the UDB. The Task Force’s 1997

final report recommended, among other things, that the UDB not be expanded for at least

ten years and that the policy of discouraging infrastructure investment outside the UDB

Comprehensive Development Master Plan policies reflect the need to discourage

sprawl development outside the UDB in order to preserve agriculture. Policy 8G states

that the UDB should contain developable land having capacity to sustain projected

countywide residential demand for a total period of 15 years after adoption of the most

considering land areas to be added to the UDB, the Redland area (a prime agricultural

location) shall not be cons idered, and land designated for agricultural land uses on the

that the principal uses in the “Agriculture” district should be agriculture and uses

ancillary to and directly supportive of agricultural. While uses ancillary and necessary to

agriculture may be permitted, the County should consider whether future schools should

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be located outside the agricultural area within the urban development areas of the

Though some agriculturally zoned land exists within the UDB, no new

commercial agricultural use of property may be established within the boundary (though

densities and urban uses within the UDB and to maximize preservation of land values

within the community. Conversely, there are lands that are zoned agricultural within the

UDB but are re-designated for urban development pursuant to amendments to the

Comprehensive Development Master Plan in 1995. These lands shall be converted only

pursuant to policies within the Comprehensive Development Master Plan and contingent

Residential development is only permitted at a density of one unit per five acres

(1:5). Smaller residential parcels may be created only if the immediate area surrounding

the subject parcel on three sides is predominately parceled in a similar manner and if

business or industry (with the exception of packing houses) is allowed in the Agriculture

district unless it is directly related to agricultural uses, is located on an existing arterial

roadway, and a adequate water supply and sewage disposal exists in accordance with

County law. Other uses compatible with agriculture and rural residential character may

be approved based on a determination of public necessity or public interest; or if the

There are approximately 1.55 million acres in Miami-Dade County, ¾ of which

are under water, in water conservation areas or considered submarginal for urban or

central portion of the County, also known as the Redland. There are considerable urban

land uses scattered throughout this agricultural area.

According to the Census of Agriculture, land devoted to agriculture has remained

fairly stable since the 1980s, ranging from 83 to 87 thousand acres, or approximately 7

1,576 since 1992, the acreage of land devoted to agriculture actually increased 1.7

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Government agencies have played a significant role in the purchase of agricultural

land for conservation purposes. Between 1975 and 1998 over 10,300 acres of farmland

were purchased by governmental agencies, in particular by the South Florida Water

Management District (SFWMD). In 2000 it is estimated that the SFWMD leased

Florida ranks in the top 10 states in total market agricultural value and its market

economic impact from all agricultural sales originating in Miami-Dade County exceeded

$1.07 billion for the 1997-98 crop year. Fresh vegetable production was the largest

contributor to this total with nearly $491 million, or 45.6 percent of the total. The

greenhouse/nursery industry was responsible for nearly 41 percent or $439.8 million of

the total economic impact. Although sales revenues generated by nurseries and

greenhouses exceeded revenues for vegetables by over $7 million during this period, a

greater proportion of vegetables are shipped outside the County, thereby generating more

"new" dollars and a greater economic impact. Sales of tropical fruits produced in the

County created an economic impact of $137 million, representing about 12.7 percent of

agriculture’s value. Miscellaneous livestock sales, including aquaculture, generated an

economic impact of about $8.2 million, representing less than one percent (1%) of

agriculture's total economic impact.

Agriculture created an estimated 14,795 jobs in Miami-Dade County for 1997/98.

Agriculture's impact on earnings in Miami-Dade County totaled over $362 million for

1997-98. Approximately 46.5 percent, or $168 million, of this earnings impact was

generated by the vegetable industry. More than 42 percent, or approximately $153

million, was contributed by the greenhouse and nursery subsector. The tropical fruit

subsector generated nearly $41 million (11.2 percent) and miscellaneous livestock was

responsible for $450 thousand (0.12 percent) of agricultural earnings impact for Miami-

Miami- Dade County must establish alternative development patterns to encourage

managed growth and preserve values of agricultural land. Growth management

techniques must preserve the value of agricultural land, the environment, and

development rights while protecting urban viability and stability.

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Implementation of a program must be legally defensible. Statutorily, local

government is required to protect and preserve land and to mitigate impacts on

advocates may view any scheme that reduces land values as a taking under the Fifth

Governments must balance the need to protect health, welfare and safety with the

guarantee for compensation for land that is taken for public purposes. The land use

program for Miami-Dade County must strive to strike equilibrium between these

competing interests.

Agricultural preservation must be part of a wider comprehensive planning

program. Community input is vital to enhance the quality of planning. Agricultural

landowners bring specific information about their needs to the table. In the long run, a

plan that combines planning and agricultural knowledge will enhance the quality of the

plan. An extensive public input process will also help to avoid unnecessary contention

between self-interested parties, including urban and agricultural dwellers and the

government. An effective public input process allows interests to resolve their

differences prior to adoption of any plan, and to ensure that the plan addresses the needs

of different groups.

This section focuses on techniques for agriculture and rural land retention. The

underlying goal is to: (1) achieve preservation of the lands most suitable for future

agricultural use; (2) achieve preservation of agricultural land values; and (3) preserve the

rural character of the area.

Zoning is the most utilized technique for preserving agriculture and rural lands.

Zoning land exclusively for agricultural uses prevents residential subdivisions while

Miami- Dade County has a specific zone, an AU zone, that allows agricultural and

related uses including packing facilities, outdoor storage of farming equipment, farming,

cattle grazing, hog and dairy farms (but only after approval at a public hearing),

nurseries, greenhouses, groves, truck gardens, single-family homes, schools, day cares,

and group homes. Minimum lot size for a residential lot is five acres.

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1. Area Based Zoning

Fixed area based zoning allows for one dwelling unit for a specified number of

acres. For example, the zoning ordinance in Lancaster County, Pennsylvania (See Task

2(c) Report) allows for one non-farm lot for every 50 acres. A non- farm lot subdivided

quarter-quarter approach operates by splitting off land from the parent parcel, and

Sliding scale zoning is another agricultural protection technique in which the

number of dwelling units permitted varies with the size of the tract. Owners of smaller

parcels may divide their land into more lots on a per-acre basis than owners of larger

example, Clinton County, Indiana allows denser development on lands with poor soil

The rationale behind sliding scale zoning is to promote development on smaller

tracts that are on less valuable soil while prohibiting development on fertile, soil rich

Critics of area based zoning suggest that a successful program must require that

properties be restricted with conservation easements to prevent further development after

easements or some other type of deed restriction will be in danger of losing the land to

non-agricultural uses in the future. The other potential problem with area based zoning is

that, like any zoning ordinance, it only exists as long as the political will to maintain and

enforce it exists. Communities must be willing to commit to this type of zoning over an

extended period of time for it to be successful.

On the other hand, this type of zoning is a very inexpensive way to protect land

because little public expenditure is necessary. Compared to other programs such as

TDRs or PDRs (discussed below), zoning can be implemented very quickly, and,

furthermore, the public is accustomed to these traditional zoning techniques.

2. Large Lot Zoning

Some communities have tried to slow rapid growth patterns by requiring rural

land to be subdivided into lots no smaller than five or more acres, with the intention that

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larger parcels will maintain lower density and rural character. The intent also is to

protect water quality and environmental resources. As a rule of thumb, the minimum lot

size created is the amount of land necessary to carry on a successful farming operation,

Though large lot zoning was a traditional strategy to protect farmland in the 1970s

and 80s, the resulting development of subdivisions has suggested that it may not be the

most effective strategy. The main problem is that the lot size is not large enough to

Large lot zoning, therefore, is widely criticized for promoting sprawl and the

degradation of farmland. Large-lot zoning essentially converts farms and valued open

space into private property and large lawns, where little community open space is

preserved, and neighbors are isolated from each other by their islands of unproductive

private land. The resulting pattern becomes "wall- to-wall" subdivision, where every

owners object to large lot zoning because, they allege, “low- and moderate-income

3. Cluster Zoning

Cluster zoning utilizes development on part of a property while preserving the

remainder for open space and/or agricultural uses. Cluster zoning requires more

creativity in urban site design and protects on-site amenities or environmentally sensitive

cluster subdivisions are sometimes known as “cluster developments”, “open space” or

landscaping, densities, and design standards.

Clustering may be accomplished by the use of a particular zoning district that

establishes a fixed or sliding scale area-based dwelling unit allocation and requires

clustering on a portion of the site. Clustering can be used in conjunction with existing

clustered residential development in Florida, single-family housing was built by creating

green spaces within neighborhoods and a greenway system between the neighborhoods

217 (Island Press 1999).

http://www2.massdhcd.com/e418portal/ CommReport02.asp?MNO=317&FY=2002 (August 2, 2002).

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and lakes. The Hammocks was also able to double their gross density to an average net

Cluster zoning may require the landowner of a tract of land to identify the

building lots and the open space to be preserved, or it may simply require that a certain

percentage of land remain as open space dedicated to agricultural uses. The protected

land is usually owned and maintained by a homeowners association. Permitted land uses

are either identified in the existing zoning or limited by cluster development regulations.

For example, one model ordinance permits residential uses such as clustered single

family houses, single family farmstead dwellings, and community living arrangements

and agricultural/open space uses such as farming (i.e. crops, farming, and livestock),

Christmas tree farming and sales, and passive recreational spaces (i.e. wildlife sanctuaries

system of incentives and benefits that gives local administrators and land owners

flexibility to tailor land use requirements to the particularities of individual parcels of

When clustering and open space preservation are left optional, few developers take

advantage of the approach. Most continue as they have always done: creating

checkerboards of house lots and streets. This means that even though the clustering

option is in the zoning ordinance, it remains essentially unused. The community is still

Though cluster zoning can keep land available for agriculture or open space, it is

generally owned by a homeowners association, and while homeowners may lease it back

to local farmers, some residents may object to allowing agricultural production because

laws (discussed below) will help. One solution creates an ordinance that requires

homeowners to lease the land back to local farmers, while limiting the type and scale of

agriculture on the property, or ensuring that farmers who sell development rights to

most successfully to preserve open space or to create transitional areas between farms

2002).

2000) (unpublished manuscript, on file with the University of Florida Conservation Clinic).

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Critics also argue that cluster zoning is environmentally unsound because cluster

development works best with urban infrastructure, but the remote location requires onsite

septic tanks. Failing septic systems require the extension of water and sewer lines,

is criticized based on the simple presumption that residential and agricultural uses cannot

certain conflicts must be addressed. Crop dusting and spraying, for example, require that

significant buffers between crops and clustered homes be maintained.

Critics of clustering worry that this technique will cause loss of rural character.

However, subdivisions designed with this concern in mind can mitigate, if not eliminate,

this concern. For example, instead of having separate driveways onto the arterial roads,

creating a more urban feel, a subdivision could be designed so the entire tract is set back

from the main road, and only one access point exists to the road, with houses accessing a

loop or networks of small streets. Those streets should be gravel and narrower than

traditional urban subdivisions to create a rural neighborhood feel.

Subdivisions also should be buffered from the street with extensive landscape

material; perhaps so well-buffered that passing motorists are not aware that the houses

exist. If there are wooded or heavily landscaped areas, the cluster should locate within

the wooded areas

The design of the building within the community can also reduce any concerns.

Houses can be designed to connote a small town feeling instead of the spreading suburbs.

Architects may design homes with human proportions, local architectural styles, local

Clustered developments are allowed in Miami-Dade County under its Zoning

are allowed within the zone, including any associated structures.

4. Buffering

Buffering is the physical separation of farms from incompatible uses, usually by

landscape, open space, or other barriers. Buffers are narrow bands of land planted with

permanent vegetation that are located around and in areas of intensive agricultural

Press 1994).

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contour grass strips, grassed waterways, and vegetative borders, are several types of

Buffers are advantageous for many other reasons. Buffers create havens for

quality of life by providing open space in a community and enhancing the value of land

conservation. Environmentally, buffers slow down water runoff from fields and block

Buffering places the responsibility for construction and maintenance upon the

farm owner, the adjacent homeowners or a third party. The Georgia Model Code, for

example, requires any non-agricultural use locating next to an agricultural use to provide

and naturally occurring elements as long as there is a semi-opaque screen between the

agricultural setbacks. In San Luis Obispo County the buffer is mandatory and ranges

from 100 to 800 feet depending on the type of agricultural use to be protected. In

Sacramento County the buffer is mandatory and generally requires a physical separation

of 300 to 500 feet. In Stanislaus County the buffer is mandatory and can be

Some buffers are not mandatory but are farmer initiated. In Suffield, Connecticut

an individual farmer may request a buffer with a width of 30 to 100 feet. The buffer is

located on the parcel to be developed and maintained by the developer. The law also

requires that lot owners be notified that they are responsible for buffer maintenance and

that subdivision plans include a provision for active agriculture and recognize agricultural

The Natural Resources Conservation Service (NRCS), of the United State

Department of Agriculture (USDA), promotes the development of buffers by farmers

themselves. The NRCS leads the National Conservation Buffer Initiative, a multiyear

effort undertaken by the USDA. The goal of the initiative is to encourage the use of

conservation buffers by farmers, ranchers, and other landowners as a means of improving

soil, water, and air quality while enhancing fish and wildlife habitat, and adding to the

(February 2002).

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assistance through the Conservation Reserve Program and other federal, state, and local

government programs to help with the cost of implementing buffer practices. These other

programs include the Environmental Quality Incentives Program, Wildlife Habitat

A significant challenge with buffers is enforcement. Though ordinances may

require buffers, they are not always enforced. Buffering ordinances can be effective as

long as local government has subdivision review authority to impose the buffer

requirement and that they are enforced once in place. Placing the buffer restriction in the

landowner’s title will assure adequate legal notice to the individual land owner

Successful buffer ordinances cannot be standard; each buffer must be site based

and locally determined. A draft report from a California research group indicates that in

some cases structural barriers are actually more effective than swathes of open space.

Under this scenario, an ordinance must determine the structural barrier and establish a

5. Overall Benefits and Drawbacks of Agricultural Zoning

Overall, the aforementioned zoning techniques are an inexpensive way to protect

large areas of agricultural land because little public expenditure is necessary to

implement zoning ordinances. Communities also favor agricultural zoning ordinances

because they are easy and quick to implement as compared to TDR or PDR programs

(discussed below) and easy to explain to the public who are accustomed to zoning

ordinances. They also separate farms from non-agricultural land uses, and reduce the

likelihood of conflicts between farmers and non- farming neighbors. Finally, agricultural

Critics of agricultural zoning suggest that such programs are not permanent.

While flexibility may be a benefit it is also a drawback because large agricultural parcels

may quickly be converted to developable parcels. Similarly, agricultural preservation

ordinances do not prevent annexation by municipalities (unless annexation is forbidden

on agricultural lands). Many successful agricultural zoning programs have a mandatory

deed restriction or easement requirement to prevent conversion when annexation occurs.

These ordinances also generally decrease land values, which decreases a farmer’s equity

in land. For this reason, many farmers oppose these programs. Finally, such programs

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1. Right-to-farm Laws

laws are state laws or local ordinances that protect farmers and farm operations from

position of farmers against nuisance suits by their neighbors, and protect farmers from

do not protect farmers from state and federal pollution and safety laws, but do underscore

farm statutes provide that a farming operation cannot be declared a nuisance if it was

“coming to the nuisance” statute. It gives farmers a legal defense from residents moving

type of statute protects specific types of agriculture such as the cultivation of land,

unreasonable local regulations. The third type of statute protects farmers and food

Miami- Dade County, is a general right-to- farm law.

Right-to-farm laws have not been extensively litigated, but this is likely to change

as the urban fringe creeps nearer to farmland and new residents file suits based on

farmer regardless of the existence of right-to-farm laws. Though the plaintiff has a slim

Thus, some statutes, for example Michigan, require plaintiffs to pay farmer’s costs in an

New Mexico, South Dakota, and Wisconsin allow farmers to recover only for frivolous

an individual’s use of their property.

1992)).

1999 at A-1, col. 1.

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Right-to-farm laws are effective when metropolitan areas begin to encroach on

rethink their decision when animal waste, airborne pollution, odors, slow-moving farm

machines on roads, and roosters crowing at the crack of dawn disturb their “rural

matter these ordinances also encourage elected officials to minimize ordinances that are

intrusive on farming. Nonetheless, these laws do not prevent the ultimate problem of

incompatibility of uses, which must be addressed through strict environmental

enforcement and well-designed agricultural districts. Another resolution is to allow for

One County Commissioner in Larimer County, Colorado suggested a creative

people thinking of buying land in the rural part of Larimer County’s metropolitan region.

The introduction says:

It is important for you to know that life in the country is different from life in the

city. County governments are not able to provide the same level of service that

city governments provide. To that end, we are providing you with the following

information to help you make an educated and informed decision about whether

including slow tractors, that some lots are not buildable, that farmers work around the

Right-to-farm laws strengthen growth management techniques such as clustering.

Court concluded that right-to-farm laws encourage full and complete use of agricultural

land, yet are still compatible with growth management techniques. A farmer proposed a

small subdivision on a portion of his farm with rocky, poor farmland. He intended to

continue farming the rest of the land. Neighbors appealed the approval of the subdivision

claiming it would deprive them of full use of their agricultural land. The court disagreed

and concurred with the county’s land use board, stating “[by] allowing development…the

development pressure on land more conducive to agriculture would be lessened.

Further…requiring deed restrictions and marketing disclosures would aid in preserving

Section 33-28.1 of the Miami-Dade County Zoning Code requires agricultural

disclosures for any land that is either designated Agriculture (AU), or zoned Interim (GU)

(outside UDB only) and determined to be subject to AU trends of development or located

within the UDB and abuts any AU zoned parcel. The seller of such property must inform

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the buyer that the land or adjacent land is zoned agricultural and that there are associated

noises, pollutants, and activities that might be offensive to the buyer.

The Florida Right-to-Farm-Act prohibits farms in operation for a year or more

from being declared either a public or private nuisance, except under very limited

circumstances. In order to enjoy protection under the Act, however, the farm must

The Second District Court of Appeals for the State of Florida found that the right-to-farm

law was “intended to preserve productive land for agricultural purposes and to protect the

little litigation has occurred pursuant to this law since its original adoption in 1979.

2. Agricultural Districting

Agricultural districting is different than agricultural zoning. Zoning only

addresses particular land uses and is one tool that can be used in an agricultural district.

Agricultural districting, on the other hand, allows farmers to form special areas

where commercial agriculture is encouraged and protected, establishing a broad array of

measures may include bans on local government laws that restrict farming, enhanced

protection from private nuisance lawsuits, eligibility for differential tax assessment,

limiting non-farm development around active agricultural areas and conservation

districting programs in the country. The Pennsylvania law identifies five purposes for

agricultural districting: “(1) Encourage landowners to make a lo ng term commitment to

agriculture by offering them financial incentives and security of land use; (2) Protect

farms from incompatible uses; (3) Assure permanent conservation of agricultural land to

protect the agricultural economy; (4) Provide compensation to landowners for

development rights; and (5) Leverage state funds for the purchase of agricultural

Agricultural districting programs are generally state-level programs. To date,

process for identifying agricultural districts and designate geographical areas for long

term agriculture. State statutes also include a combination of measures and management

tools, as described above, to protect farmland. The requirements and provisions of the

programs differ greatly, but general conclusions can be drawn. The programs are flexible

and local in nature, stabilize the land base at a low public cost, provide multiple benefits

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drawbacks associated with agricultural districting include the fact that sanctions for

withdrawing land are minimal and do not deter conversion; the limits on non-farm

development may not prohibit the development of urban infrastructure in agricultural

areas; in some states, the benefits are not a strong enough incentive for farmers to enroll;

does not have a similar state law, but that does not preclude Miami-Dade County from

implementing some agricultural districting measures typical in state- level programs.

New York has one of the most successful agricultural districting programs in the

nation, in part because it is aimed at preserving farmland through maintaining and

fostering farming itself. By granting a series of benefits that provide more favorable

social and economic conditions, the program encourages an environment that is more

beneficial for agriculture. Support from elected officials also has helped to create an

agriculture- friendly atmosphere. For example, the legislature passed an act that declares

In addition to creating an agricultural districting program, the New York program

also includes provisions that prohibit local nuisance ordinances from interfering with

normal farm operations; requires agency review of development which induces

infrastructure expansion; requires alternative consideration for public development

proposals that bring agricultural lands into the hands of the municipality through eminent

domain; allows for tax incentive programs; and directs all state agencies to maintain

3. Land Evaluation Systems

The land evaluation and site assessment system (LESA) was launched in 1981 by

the U.S. Soil Conservation Service to make objective ratings of the agricultural suitability

government developed LESA, state and local governments have adopted it to meet their

LESA enables the planning of water, sewer, and transportation projects or the creation of

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LESA’s land evaluation and site assessment elements form a two-part system that

assists in the implementation of the Farmland Protection Policy Act (FPPA), selecting

appropriate lands to be included in the program, and establishing minimum parcel sizes

usually designed by the federal Soil Conservation Service (SCS) and local Soil and Water

Conservation Districts (SWCD), and implemented by a local committee generally

comprised of a district conservationist, a cooperative extension representative, SWCD

directors, farmers, planners, local agricultural officials, and others who have knowledge

Local officials or a locally appointed site assessment committee usually design

investment; and characteristics external to the parcel of land, such as nearby land uses,

planners, members of the planning commission, SWCD directors, a cooperative

extension representative, building industry representatives, recreational representatives,

public interest groups, concerned citizens, and other government representatives

LESA is a flexible system, designed to accommodate differences among states,

counties, or areas. Specific systems should be based on existing knowledge of the area,

local soil surveys, land use plans, policies, and programs. LESA may be applied

i. Select lands to be part of a TDR or PDR program;

ii. Implement the federal Farmland Protection Policy Act;

iii. Choose farm units to be included in agricultural preservation programs;

iv. Determine appropriate lot size for subdivisions in agricultural districts;

v. Plan water, sewer, and transportation projects or the creation of

agricultural districts;

vi. Determine the need for an agricultural preservation program and the types

of programs to be used;

vii. Assess and review environmental impacts; and

viii. Develop guidelines under which agricultural land conversion to nonagricultural

uses should be permitted.

A 1990-91 study identified 212 local and state governments in 31 states as active

were still using the system in 1994. Those who abandoned the sys tem found it too

Center 1991).

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complicated or time consuming; some noted a lack of interest or support by landowners

respondents were satisfied with the LESA system.

Miami-Dade County does not have a LESA program, but other counties in Florida

– Highlands, Marion, and Pasco, for example – have utilized LESA. Although soil

quality, a major factor under LESA, is not as relevant in Miami-Dade County, other

LESA criteria will be useful should the County adopt prioritization criteria to implement

the preferred development scenario.

1. Conservation Easements

A conservation easement (or conservation restriction) is a voluntary legal

agreement between a landowner and a land trust or government agency that permanently

limits uses of land in order to protect its conservation values. It allows a landowner to

tailored to meet the owner’s personal management objectives and goals for the property.

In essence the landowner sells his or her right to develop the land to a

conservation organization or governmental entity. Current uses, including residential and

recreational uses, agriculture, forestry, and ranching can continue, although the easement

might require the protection of some environmental and aesthetic qualities of the

Placing an easement may result in property tax savings and can be essential for

passing land on to the next generation. By removing the land's development potential,

the easement lowers its market value, which in turn lowers estate taxes. Whether the

easement is donated during life or by will, it can make a critical difference in the heirs'

2. Purchase of Development Rights

In a typical purchase of development rights (PDR) program, the government

purchases the owner’s right to develop specific parcels of land for managerial purposes,

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sell conservation easements to governments or other private conservation agencies. The

price of the development right is generally equal to the diminution in the market value of

the land resulting from the removal of the development rights, and thus is the difference

between the value of the land for agricultural use or open space and the land’s

open space or agriculture in perpetuity, though some programs allow termination of the

PDRs are designed to be voluntary. Offering an incentive to land owners may

convince them to resist selling their land for a potentially high price to subdivision

developers. In short, purchasing development rights is cheaper than buying the land in

fee simple.

State and local governments may cooperate on PDR programs or work

independently. Some states have enacted PDR programs that are funded, implemented,

and administered by state agencies. Other states fund the purchase of land by either local

because they allow the state to set broad policies and implement regional planning

strategies. Local governments, with their specific knowledge of the area, then identify

land suitable for the PDR program and monitor the land once the easements are in

PDRs.

According to the American Farmland Trust, PDR programs are very popular with

farmers, yet the supply of money has lagged behind the supply of easements offered by

farmers. PDR programs are popular with farmers because they offer enticing incentives.

PDR programs increase the availability of real capital to farmers without mortgaging

land; lower real property taxes due to the decrease in the value of the land once the

development rights have been sold; and there are potential estate or inheritance tax

On the downside, some landowners reject PDR programs because they are

perceived as “tying the hands” of the landowners’ heirs, who may wish to sell the land

than buying the property outright, a PDR program is still cash intensive and communities

may reject PDR programs if they require local monetary support in the form of

development fees or taxes. In communities where taxes and fees are already levied for

schools, public safety, parks, infrastructure, and community programs, agricultural

Maine, 306 and Massachusetts 88-91.

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preservation may fall by the wayside unless there is heightened community awareness of

Successful PDR programs must be carefully designed and include a set of criteria

to determine from which lands the development rights should be purchased. The criteria

must take into account the location and surrounding uses of the land. PDR programs

make sense if hundreds of acres can be preserved (either through contiguous smaller

parcels or a few large parcels) because it makes it more likely that commercial farms will

may be a magnet for housing developers who market “rural lifestyles” and the conflict

land in PDR programs must be reasonable and should be balanced against the likelihood

a high expense per acre, little farmland will be saved at enormous costs, and even then

Although Miami-Dade County has a viable “transferable development rights”

program (discussed below), known as “severable use rights” it does not have a PDR

program. The advantages of a PDR program are that the governing agency – or a

designated land trust – has greater control over which lands are identified for

preservation. The challenge, of course, is generating the funds to purchase development

rights. However, in communities that are experiencing a decrease in agricultural viability

and simultaneous increase in urban growth pressure, the ability to affirmatively secure

open space is critical to success. As is discussed in Task 2(c), this has proven to be the

case in many communities around the country that have successfully preserved

significant agriculture and open space lands. The Task 2(c) report explores five of these

communities and suggests ways that Miami-Dade County might successfully implement

similar regulatory approaches.

3. Land Banking

Land banking, also referred to as advance acquisition, is a technique where land is

banks for the purpose of acquiring lands in urban areas where expansion is expected to

banks are governmental units that could either purchase agricultural land in fee simple

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Land banks are advantageous because they allow for better control over timing

Also, by giving public officials a more personal interest in property and its regulation, it

helps promote sounder planning practices such as unrestricted, flexible comprehensive

A successful land bank must have the power to purchase property and condemn

time so that the land bank can pace development appropriately. A land bank must also

drawback to this technique is the expense.

The legality of land banking has been questioned, and the U. S. Supreme Court

the purpose of condemning the land has a reasonable relationship to the purpose of

protecting open space and environmental lands, then the taking is for a public use and

controls because it is a reasonable means of fulfilling a public purpose, particularly where

purchases are made consistent with the explicit policies of an adopted comprehensive

plan.

4. Transfer of Development Rights

Transfer of development rights (TDR) programs – called “Severable Use Rights”

in Miami-Dade – allow for planning on an area wide basis by allowing landowners in

restricted areas (“sending areas”) to transfer densities and other development rights to

Landowners in receiving zones are allowed to develop their land but only if they

purchase development rights from designated sending areas. Thus, development is

directed away from agricultural or environmentally sensitive lands to areas better

alternative to purchasing land outright and ameliorate the harshness of restrictive

TDR programs are popular with citizens and governments because the goal is to

farming without development pressures but with the benefits from the sale of the rights.

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The receiving site landowner is able to build at a greater density, and realizes the market

value of their land. The community benefits by preserving farmland without incurring

infrastructure;

affordable housing;

decreasing the likelihood of successful taking claims; and

growth into desired areas.

TDR programs are a market-based tool, thus municipalities must be certain there is a

market for the development rights being bought and sold. A municipality must, through a

comprehensive planning process, determine how many development rights are to be

bought and sold and where. A TDR program must encourage sales that benefit the entire

sold should be based on ecological and populations concerns; the more sprawling the

Successful TDR programs include the following:

appropriate, exemption from certain fees, and exemption from certain

development standards;

TDR programs may be mandatory or voluntary. Mandatory programs are

designed to prevent fragmentation of farmland in a way that protects landowners’

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sending area and the designation of a receiving area. Landowners in the sending zones

are not required to sell their development rights, but may as a method of receiving

compensation for the down zoning. Similarly, receiving area landowners must buy

development restrictions may include virtual prohibition of non-farm development in

agricultural areas through zoning, large minimum lot size, or restrictive requirements for

Voluntary TDR programs allow landowners in sending areas to sell their

development rights to a party in a receiving area in lieu of development in the sending

areas may choose to develop parts of their property and sell off development rights on

Voluntary programs may be more attractive to local governments because they are less

politically controversial.

Successful TDR programs use a revolving fund where purchased development

rights are sold on the open market and the funds are reinvested in the purchase of new

development rights that will be banked. Communities that invest funds in areas other

than the purchase of development rights jeopardize their TDR program because only a

finite amount of money is available to purchase development rights.

However implemented, TDR programs must be designed to withstand legal

challenges. First, as discussed above, a market for development rights is critical. The

market will dictate whether a sending area is appropriate for down zoning or whether

such down zoning would leave no economically viable use for those property owners.

Designation of sending and receiving districts may also generate significant debate

(density in the sending areas is low, while density in the receiving areas is too high).

Next, zoning or the right to build in the receiving area should not be so restrictive so as to

force purchase of development rights for any type of development. Failure to allow some

The Miami-Dade Board of County Commissioners adopted the East Everglades

Ordinance in 1981 that declares the Everglades an area of critical significance and

implements land use regulations that allow the transfer of development rights. The

programs is referred to as a severable use rights (SUR) program, because the right to

develop is “severed” from the sending property and transferred to a receiving property

more appropriate for development. The Miami-Dade County SUR program identifies

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sending parcels within the East Everglades area and receiving parcels within the UDB.

The ratio for SURs varies from one SUR per five acres to one SUR per 40 acres.

The East Everglades Ordinance imposes strict environmental regulations within

the sending areas that include road standards and excavation limitations. As a result of

the environmental limitations and the density restrictions, landowners find it very

difficult and expensive to build in the East Everglades, providing incentives for them to

sell their development rights.

The receiving site may use the SURs to increase density, lot area, frontage, and

other development requirements on residential and commercial receiving sites in the

unincorporated parts of Miami-Dade County that are designated for urban development.

Sending zones are also eligible for a 10 percent reduction in the minimum lot size, a one

third reduction in the required front setback and an 18 percent increase in density.

Additional commercial floor area is allowed in commercial and office park zones.

Although initially of limited success, the success of the SUR program has

increased since 1995 because the Comprehensive Development Master Plan provides for

the use of SURs; the transfer ratios are high in certain areas; the ordinance has eighteen

different zones that can receive SURs; the administrative process is predictable and

uncomplicated; and the local government is supportive of the program. The Miami-Dade

County program is also successful because there is a substantial demand for additional

development in the area. Developers have found it cheaper to buy SURs than to buy

5. Florida Rural and Family Lands Protection Act

Passed by the Florida Legislature in 2001, the Rural and Family Lands Protection

Act (Act) allows the Department of Agriculture and Consumer Service (DACS) to protect

ranch and timber land by offering four options to willing land owners. DACS may:

and subdivision with an option for the government to buy the land; or

permanent conservation easement.

While conservation easements are a familiar tool in Florida (see discussion above)

the Act is innovative in that it institutes options for varying degrees of restriction and

time parameters. It adds flexibility for both landowners and easement holders that was

not previously available. The Act is supported by the agricultural industry as a means to

keep family farms in business and realize value for their property while protecting the

property from subdivision and development.

While the Act passed in 2001, no funding has been set aside for the program. In

December of 2001, the DACS issued a legislative report that described the types of lands

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that would receive priority under the program. However, the 2002 and 2003 Legislatures

failed to allocate funds to the program. DACS had requested approximately $10 million

to fund the project. If future legislatures fund the program, this Act will significantly

impact local rural programs around the state, including Miami-Dade County. Funding

from the state- level can radically augment local efforts to preserve open space and rural

The disparity between the market value of agricultural land for agriculture and for

temptation or need to sell many states have enacted legislation giving real property tax

deferments, preferences, or exemptions to the owners of agricultural or eligible land.

Besides agriculture, eligible uses might be open space or timber production. Tax

programs can be effective when used in tandem with other mechanisms. Though tax

incentives do reduce the tax pressure, they do not always reduce the development

pressure, as the capital gains for land development may still outweigh the property tax

The purpose of agricultural tax programs is to help farmers stay in business by

reducing their real property taxes; to treat farmers fairly by taxing farmland based on its

value for agriculture instead of its value for development; and to protect farmland by

are beneficial because they correct inequities in the tax system created by development

pressures and they help farmers stay in business. Tax programs, unfortunately, cannot

ensure long term protection of farmland, and are criticized when they inadvertently

provide a subsidy to real estate speculators who keep their land in agriculture pending

1. Differential Assessment

Differential tax programs provide incentives for landowners to keep their land in

agriculture by assessing agricultural lands at its current or farm value rather than its fair

light of the net farm income they can expect to receive from it. Full market value

Michigan has a differential assessment program. There are three kinds of differential

assessment programs: preferential assessment, deferred taxation, and restrictive

agreements.

Preferential assessment is the least restrictive of the three types because it does

not impose penalties for converting land to non-eligible uses. The agricultural value is

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multiplied by the local tax rate to determine the amount of real value tax due each year.

Farm buildings are generally taxed at their fair market value. These programs base

farmer’s tax bills on the agricultural value instead of the fair value as long as the lands

The principle behind a deferred taxation program is that the tax on the market

value of the property is deferred until the property is developed. Deferred taxation

programs use the same process as preferential assessment programs to calculate property

taxes. The difference is that a tax is imposed on the landowner when the land is

converted to non-eligible uses or sold for development. Some states impose “rollback”

penalties that are calculated based on the sum of the tax benefits received, while other

landowners to renew their application for tax deferment each year.

The taxation programs are designed to target commercial agricultural land rather

than small farms used for recreation or land that is vacant pending development. To

achieve this goal landowners may be required to sign restrictive agreements (California)

or restrictive covenants (Georgia, Hawaii, New York and Pennsylvania). The restrictive

agreements must be signed as a condition precedent to the reassessment of the land for

eligibility criteria whereby lots must be at least 10 acres, and meet an ownership and

production test. For the ownership test, the land must be the owner’s homestead or that

of a surviving spouse, child or sibling; the land must have been in possession of one of

the previously mentioned parties for seven years; or the land must be the homestead of a

shareholder in a family farm corporation. To be considered an eligible use the land must

be devoted to production of farm products for sale that provide at least 1/3 of the family’s

The Florida Constitution provides for a differential assessment for agricultural

depends on the length of time the land has been utilized as agricultural land; the purchase

price paid; the size, as it relates to specific agricultural use; whether effort has been made

to care sufficiently and adequately for the land in accordance with accepted commercial

agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing,

reforesting, and other accepted agricultural practices; whether such land is under lease

and, if so, the effective length, terms, and conditions of the lease; and such other factors

land, it is eligible for differential tax assessment.

2. Circuit Breaker Tax Relief Credits

Circuit breaker programs allow for farmers to take tax credits for part of their

local property tax bill. The cost of the tax credit is distributed among all the taxpayers in

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the state. A circuit breaker program depends on involvement at the state level. Only

Michigan, Wisconsin, New York and Iowa have instituted circuit breaker programs.

The New York program, adopted in 1996, provides farmers who earn at least 2/3

of their total household income from farming with relief from local school taxes levied on

agricultural land and buildings. Farmers receive a full credit for up to 250 acres of

farmland and a fifty percent credit for more than 250 acres. The amount of credit also

depends on a family’s income.

The other state programs operate similarly but also can require the farmer to sign

a restrictive agreement where the farmer promises not to build any non- farm structure for

ten years. In return, farmers are protected against taxes levied by local utilities and

3. Real Estate Transfer Taxes

Real estate transfer taxes are taxes on various property transactions such as the

transfer of property deeds and the transfer of a controlling ownership interest in entities

is recorded. State statutes generally spell out the conditions of the tax and for what

purposes the revenue may be used.

Real estate transfer taxes are frequently used for farmland preservation.

Maryland is the leading state using this type of tax through a ½ percent tax on the value

of all real estate transfers that is divided between parkland acquisition and farmland

Florida’s real estate transfer tax, called the documentary stamp tax, is codified in

Chapter 201 of the Florida Statutes. The tax is primarily levied by the state and the

revenue is used for numerous purposes including the purchase of conservation lands

documentary stamp taxes in limited situations and only for the purpose of funding the

§ 5:71 (2003).

Task 2(c).

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1. Impact Fees

Impact fees are mandatory payments paid by developers or builders in return for

development approval. They are calculated to be the proportionate share of the capital

charges are generally levied by local governments but are not taxes because impact fees

constitute a single payment, unlike periodic payments of taxes. The costs of developing

infrastructure for a new development are charged at the time of development, reducing

the high costs of development on the urban fringe or in other areas without existing

The power to charge impact fees is derived from local government’s police

powers. While some states enact enabling legislation for impact fees, others, such as

Florida, simply delegate the power to local governments through home rule power.

While local governments have limited powers to impose taxes, they have broad powers to

regulate in order to protect the health, safety and welfare of the community. Courts have

upheld the legality of impact fees if such fees meet the rationale nexus test, which ensures

a rational relationship between the demands of new development and assessments against

additional public facility (i.e. schools, public safety, sewers) created by the new

development and the fee must not exceed the cost of providing the facility. Second, the

property charged the fee must derive a roughly proportional benefit from the new

property owner to monetary damages.

Impact fee programs must be carefully designed so the fees are reasonable, and

Local governments often use careful economic analysis and planning to determine impact

fees. “The most widely implemented and judicially upheld impact fees are based on data

which indicate desired level-of-service standards for a particular facility and calculate the

cost of maintaining those standards in light of the increased demands created by new

protect agricultural land, they have been used as part of an overall growth management

policy.

(Arthur C. Nelson ed. 1988).

25, 28 (1999).

667 So.2d 180, 183 (Fla.1995).

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2. Environmental Mitigation Fees

A new type of impact fee is being proposed by environmental advocates called

environmental mitigation fees, one purpose of which may be agricultural preservation.

Environmental mitigation fees are a hybrid between impact fees and market based

environmental mitigation models. “The goal of environmental mitigation fees is to

Traditionally, environmental pollution fees have been assessed on a case-by-case

The problem with this approach is that it may not meet comprehensive environmental

goals for the community because it is not based on a community wide plan.

An environmental mitigation fee requires long-range planning for environmental

goals. Agriculture and environmentally sensitive lands, critical habitat, endangered

species and other critical resources are identified early on. Then, the comprehensive plan

guides the assessment of impact of any development. “Government regulators would

determine the units of environmental impact associated with a new or existing project and

on the formula and may choose (1) to pay and proceed with the project; (2) to reduce the

adverse impact and pay a reduced fee; or (3) to pay another firm to mitigate adverse

preserving agricultural land through the purchase of development rights, a TDR program,

or other method discussed in this paper.

Although not a fee-based arrangement, in Miami-Dade, environmental impacts

are mitigated through regulatory mechanisms. Section 24-58 of the County Code

requires a permit for any development that alters County canal rights-of-way, mangrove

trees, tidal waters, submerged bay bottoms, wetlands, natural surface flows, or critical

groundwater sources. The environmental mitigation fee would be collected and used in

the protection of these same environmental resources.

3. Federal Programs

The United States Department of Agriculture (USDA) has a number of programs

to assist state and local governments and individual landowners with conservation. The

Food Security Act of 1985 created the Farmland Protection Program (FPP) which

provides funds to help purchase development rights to keep productive farmland in

69, 71 (1999).

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establish and carry out a farmland protection program under which the Secretary shall

purchase conservation easements or other interests in eligible land… for the purpose of

The program is administered through the Natural Resources Conservation Service

(NRCS), a division of the USDA. The NRCS provides technical and financial assistance

to state, tribal and local governments and non-governmental organizations that already

have farmland protection programs. Through the benefit of the FPP these governments

and organizations acquire easements and interests in land, while landowners agree to

develop and carry out a conservation plan on the land. A total of $30 million was

available in 2001 for the program.

States may cooperate with the federal government to devise creative funding

techniques for agricultural preservation. Martin County, Florida recently agreed to pay

for the speedy installation of water lines for a Superfund project that will bring clean

water to its residents. While a state’s portion of Superfund programs is usually only 10

percent, in exchange for Florida's payment of the full cost of the project, the federal

agency has agreed to give Florida a credit that can be used to offset the state's share of

federal government might opt to give credit for farming programs as well as for clean up

programs.

1. Growth Tiers

Timing and sequencing deve lopment to coincide with the provision of public

facilities was first implemented in an innovative plan in Ramapo, New York and was

with the provision of adequate municipal facilities as established by a long-term

plan is the recognition of the fundamental constitutional principle that development on

the urban fringe can be controlled by linking the development with the planned extension

of capital improvements over a reasonable time.

A “tier” system utilizes the Ramapo principle by providing for the delineation of

functional areas within the region for the identification of goals and objectives and the

Tier I consists of the downtown area or urban core. Tier II consists of existing residential

areas within the urban area and older suburban areas. Tier III consists of the actively

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development area. Tier IV is the rural and agricultural land that is inappropriate or

premature for development. Tier V incorporates environmental and agricultural zones

current and desired land use pattern within the urban area, but will be similar to the

system described above.

2. Concurrency Programs

Concurrency programs tie development approvals to level of service (LOS)

standards. LOS standards measure the ratio of public facility capacity to the need for the

facility. Such a program takes into account all demand for the facilities, including

existing demand as well as the additional population added by new development

proposals. An adopted LOS standard reflects a policy decision concerning the

appropriate equilibrium between population and public facilities that may be applied to

new development in the standard setting and review process, and to the public capital

budgeting process. LOS standards conveniently provide a benchmark for monitoring the

Florida was the first state to introduce “concurrency” requirements; the Florida

Statutes specifically provide that, “[P]ublic facilities and services needed to support

requirement is part of Florida’s Growth Management Act of 1985 that was enacted to

discourage urban sprawl, improve existing infrastructure to support infill and

Concurrency programs do not concentrate on one particular sector of a city or

county; they look at a community comprehensively to plan for the entire area. The result

is that growth occurs at a rate that is economically beneficial to the community and in a

manner that retains land values. The specific techniques discussed above should be

implemented within the framework of the comprehensive plan.

Miami-Dade County has a Service Concurrency Management Program. No

development order shall be issued where LOS standards for all public facilities will not

meet or exceed LOS standards or where such an order would result in a reduction of

services, except in certain circumstances, such as when the development is located in a

designated urban infill area.

465 (1996).

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3. Urban Service Boundaries

channeling growth that involves designating an urban services area and a rural service

area. Planning studies designate the urban services areas, which are the most suitable to

the extension of municipal services such as streets, sewers, and water, and rural service

important attributes of a USB is that it makes the development pattern predictable for

There are generally four goals for a USB: (1) to make the most efficient use of

public tax money for infrastructure funding; (2) preservation of agricultural and

environmentally sensitive lands; (3) efficient provision of municipal services; and (4)

values within the community.

The most challenging issue surrounding a USB is how and under what

impacts how a community develops, and in the agricultural context, may determine what

agricultural land is given over to development and what land is preserved for farming.

Therefore, adjustments to a USB should only take place after deliberate planning

boundary adjustment process should be “firm enough to provide predictability for longrange

states, such as Oregon, set out guidelines for adjusting boundaries. These guidelines

include compliance with a comprehensive plan, and the analysis of socio-economic

Intergovernmental coordination is required to successfully implement a USB

program because most urban cores are associated with a municipality separate from the

role of each governmental entity involved and describe the process for boundary

adjustments.

Miami-Dade County’s Urban Development Boundary (UDB) is a USB. Details

of the Miami-Dade County UDB are provided above in Section II.

uses appropriate. The focus is less on urban services than on uses such as siting of future development,

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Preventing sprawl may be the most effective method of preserving the economic

value of land in Miami-Dade County. A 1995 Bank of America report stated, “Growth

has helped fuel … an unparalleled economic and population boom and has enabled

millions … to realize the enduring dream of home ownership … but sprawl has created

enormous costs… Ironically, unchecked sprawl has shifted from an engine of … growth

to a force that now threatens to inhibit growth and degrade the quality of our life.”

Indeed, the public infrastructure gap is nearing $4 trillion. Such high costs for

infrastructure impede development of community services and inhibit the preservation of

open space and agricultural lands. If urban growth consumes agricultural land, and

government money is spent building infrastructure, then community services and existing

infrastructure suffer. One conservative critic notes that more flexible zoning codes

“would allow for more innovative development designs that accomplish conservation

goals and satisfy consumer demand for housing alternatives. Ensuring that development

covers its infrastructure expenses will allow the marketplace to operate freely and

Preserving the economic value of land in Miami-Dade County can be

accomplished by concentrating on four goals:

1. Economic development through the preservation of agriculture;

2. Clustering of new development outside the urban area to reduce sprawl

and reduce infrastructure costs;

3. Maintain the character outside of the urban area; and

4. Develop strategies that are legally defensible.

The following is intended to give a very general overview of the legal issues that

arise when local governments in Florida undertake planning and plan implementation.

Further legal analyses should be undertaken to address any specific program or ordinance

considered by the County for adoption.

The authority of local government agencies to adopt land use and zoning

regulations is derived from a state’s police power authority. Generally, comprehensive

growth management programs include police power regulations such as a zoning

ordinance incorporating density standards. Governments have the authority to regulate

the activity or use of property in order to protect or to prevent harm to the public health,

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courts have recognized the need for plans to deal with critical issues such as urban

sprawl, declining land values, environmental degradation, a lack of open space, and

Nonetheless, there are several types of legal issues that must be considered.

Generally, (1) does the local government have authority or police powers; (2) does the

action advance a legitimate governmental purpose; (3) is the system applied equally to

persons and land without operating in a discriminatory manner; (4) are the governmental

regulations implemented such that there is no "taking" of private property without "just

compensation"; and (5) do the government regulations afford substantive and procedural

due process to persons affected?

The authority of Florida’s local governments to plan is undisputed, and in fact

mandated, by Florida’s Growth Management Act of 1985. The other issues are

considered under three major headings: takings, impact fees/mitigation fees and due

process.

1. Takings

The majority of legal challenges to land use regulations fall under the claim that

If the purpose is to protect the public welfare, government may limit use of property

through regulation without a finding that a taking has occurred under the Fifth and

but is in the nature of amenity protection such as open space preservation, environmental

protection, or agriculture preservation, the standard used is a balancing test to determine

whether the benefit to the public is outweighed by the burden to the land owner. The test

has two prongs: (1) does the regulation substantially advance a legitimate state interest,

(1999).

both federal courts and state courts in Florida.

United States Supreme Court has recognized three kinds of regulatory takings: physical, title, and

economic. A physical taking is one where a governmental entity invades private property regardless of the

taking does not involve land invasion, but results from the government accepting a title dedication or

regulation does not substantially advance legitimate state interest and denies an owner of economically

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Under the first prong, the court will not construe the governmental action to be a

taking as long as the governmental entity has reasonably concluded that “the health,

safety, morals, or general welfare would be promoted by prohibiting a particular

calculated to meet the evil without exceeding the public necessity or substantially

affecting uses that do not “partake of the offensive character of those which create the

manner that is rationally- related to the legitimate purpose it seeks to advance.

Under the second prong, a court must determine whether the property maintains

have uniformly held that all substantial use of property must be lost before an economic

taking occurs. Economic takings must be viewed in their entirety, and therefore a

TDR programs have been particularly susceptible to takings claims, but if the

TDR system is designed appropriately it will be upheld. The key to a successful program

is effectively protecting the sending area's resources while offering the property owner

case, the court upheld a city zoning ordinance that restricted beachfront lots to singlefamily

dwellings and granted the owner TDRs that could be applied to adjacent lots to

increase permissible density. The purpose of the ordinance was to preserve the

beachfront property, and the court dramatically noted, “Before us is the last unspoiled

beach area on the Gold Coast, a veritable Shangri-La in an otherwise endless Himalayan

designed to protect threatened wetlands. In both cases, the court found that protecting

open space and environmentally sensitive areas was a legitimate state interest.

2. Impact Fees/ Mitigation Fees

Although there is no specific case law on mitigation fees in Florida, a review of

the impact fees jurisprudence is relevant because any mitigation fee legal analysis should

follow the same arguments. In 1994, the U.S. Supreme Court decided the important case

1624 (1999).