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Don’t bother me now Sailor, we’re making good time!

Don’t bother me now Sailor, we’re making good time!. Captain!. Pinecrest Lakes v Karen Shidel 795 So. 2d 163 (Fla. 4 th DCA 2001). Background. Florida Statutes, 163.3194(1)(a). “After a … plan … has been adopted, all development shall be consistent with such plan.”

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Don’t bother me now Sailor, we’re making good time!

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  1. Don’t bother me now Sailor, we’re making good time! Captain! Pinecrest Lakes v Karen Shidel795 So. 2d 163 (Fla. 4th DCA 2001)

  2. Background • Florida Statutes, 163.3194(1)(a). • “After a … plan … has been adopted, all development shall be consistent with such plan.” • Q. Who determines whether a development is consistent with the comp plan?

  3. Facts . . . • 1981 – Pinecrest Lakes, Inc., bought 500 acres of land, which they developed into the 10 phased Pinecrest Lakes development. • 1986 – Karen & Paul Shidel bought a one-acre lot in Phase 1, where they built their home. • Phase 10 is the Villas at Pinecrest Lakes, which was transferred to a separate entity in 1997, after the DCA ordered a de novo trial on plan consistency.

  4. Jensen Beach Stuart

  5. Jensen Beach

  6. Welcome to Pinecrest Lakes

  7. One of Pinecrest Lake’s lakes

  8. Facts continued . . . • Phase 1 was “Residential Estate,” • Single family detached homes • Maximum density of 2 dwelling units per acre • Phases 2 thru 9 were also single family detached homes on large lots.

  9. A home in Phase 1

  10. Another Phase 1 home

  11. The Sheidel home

  12. Facts continued . . . • Phase 1 was “Residential Estate,” • Single family detached homes • Maximum density of 2 dwelling units per acre • Phases 2 thru 9 were also single family detached homes on large lots. • Phase 10 was designated in the Martin Comp Plan for “medium density” • Attached buildings • 21 acres with a maximum of 8 per acre.

  13. 1 4 3 2

  14. Phase 10 . . . • Phase 10 had been previously approved by Martin County for • 29 single family detached lots • 1.4 units per acre • 30,000 Ft² average sized lots. • Developer requested approval of • 136 multi-family units • 6.5 units per acre • An average of 6,000 Ft² per home.

  15. Phase 10 continued . . . • The Comp Plan would allow • Up to 8 units per acre • On 21 acres • 168 units allowable • The1995 action by Martin County for 136 units would be consistent with Plan’s density. • The 3-2 commission vote rejected the unanimous planning commission recommendation for denial • Staff recommended approval

  16. So, what’s it all about? • The Comprehensive Plan requires that; • For structures immediately adjacent, any new structures must be • comparable to and • compatible with those already built. • Are . . . • Two-story apartments, 8 to a building and 6.5 to an acre comparable to and compatible with • Single family homes on half-acre plus lots?

  17. Legal action • 2/1996 – Two months after the County’s approval, Plaintiffs filed suit alleging the approved development was not consistent with the comprehensive plan. • Plaintiffs requested a de novo trial with the court determining plan consistency. • This would make the courts the ultimate decider of plan consistency.

  18. County argued that the judicial role was confined to appellate review (Snyder) • in which the county’s determination of consistency was entitled to deference • and the court should consider only if there was competent substantial evidence supporting the Board’s action.

  19. In Snyder, Court held . . . • “that a landowner seeking to rezone property has the burden of proving • that the proposal is consistent with the comprehensive plan and • complies with all procedural requirements of the zoning ordinance. • and

  20. [After the applicant has met its burden] • the burden shifts to the [governing] board to demonstrate • that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose.” • A review of THE BOARD’S action is by certiorari and the standard of review is competent substantial evidence.

  21. Pinecrest Lakes begs the question . . . • Is a challenge by a third party alleging plan inconsistency controlled by Snyder or • Should an affected third party be allowed the opportunity to present evidence on the allegation at a de novo hearing? • Plaintiffs alleged that applicant had not met its burden of proving plan consistency and thus the board erred in approving the development order.

  22. Lower court 1 • July 19, 1996, Judge Cynthia Angelos • Dismissed residents’ suit • Ruled that the development was consistent with county’s comprehensive plan. • Plaintiffs appeal to the 4th DCA • February 3, 1997, developer proceeds with the construction of 5 of the planned 19 buildings. • October 15, 1997, 4th DCA reverses Angelos’ ruling and returns the case to the circuit court.

  23. 4th DCA – 1 • Plaintiffs, as long as they meet the requirements for being affected parties, are entitled to: • present evidence on the allegation of non-consistency • at a de novo hearing. • See Poulos v Martin County, 700 So.2d 163 (Fla 4th DCA 1997)

  24. Lower court 2 • March 12, 1998, Judge Larry Schack starts a non-jury trial on the matter. • October 27, 1998, Schack rules: • The apartments are in violation of the comprehensive plan and • Scheduled hearings on what to do with the 4 occupied buildings. • At January 25, 1999 hearing, • Plaintiffs demanded removal of the buildings • Defendants offered to construct a buffer

  25. Evidence introduced – • The removal of the 5 completed and occupied buildings would represent a loss of $3.3 million to the developer • The loss in property value to the adjacent Phase 1 properties would be $300,000. • $26,000 to Shidel.

  26. July 6, 1999, Judge Schack orders the destruction of the apartment buildings. • October 1999, developer appeals to 4th DCA. • February 2, 2000, Homeowners ass’n and developer settle for a payment of $400,000. • Karen Shidel, one of the plaintiffs, does not settle and continues the suit.

  27. Fourth DCA – 2 • September 26, 2001, 4th DCA upholds lower court and orders the buildings torn down. • The Court reasons that the courts must first determine the plan consistency of an action before a court could issue an injunction against enforcement of the action.

  28. If the courts must give deference to local government’s determination of consistency, then there could be no cause of action on the basis of plan inconsistency. • I.e., if a board determines an application is consistent with the plan and • If the courts must give deference to that determination, then • There would be no way to challenge that action on the basis of inconsistency.

  29. additionally . . . • Snyder stands for plan implementation being quasi-judicial and thus subject to strict scrutiny. • Therefore, affected individuals could challenge actions on the basis of plan inconsistency and the standard of review would be strict scrutiny.

  30. Compatibility • The way it was laid out . . .

  31. Compatibility • The way it should have been laid out . . .

  32. So adjacent portions of Phase 10 would be • comparable to and compatible with Phase 1.

  33. 1 4 3 2 1 4 3 2

  34. Is the remedy too harsh? • If the 5 buildings are demolished . . . • Loss to developer $3,300,000 • If the 5 buildings are continued . . . • Loss to Shidel $ 26,000 • Loss to all of Phase 1 $ 300,000 • Would it be equitable to impose a loss of $3.3 million on the developer to protect $300,000 in Phase 1 property value? • Why not simply award Phase 1 property owners $300,000? [which is what they settled for]

  35. The DCA • “If . . . an injunction is the statutory remedy to insure consistency of development . . . It does not seem to us that the kind of balancing advocated [by Pinecrest] would further that goal. • In fact, it would very likely lead to even more inconsistent development . . ..” • “The statutory rule is that if you build it, and in court it later proves inconsistent, it will have to come down.”

  36. Florida Supreme Court • On May 31, 2002 the petition for review was denied.

  37. September 5, 2002

  38. The rest of the story . . . • On September 5, 2002, after an 8 year battle, the Villas at Pinecrest Lakes were torn down. • The site is now empty. • The five buildings containing 40 luxury rental apartments were valued at $3,300,000 (buildings only). • No suite was filed against Martin County for damages.

  39. A continuation of the rest of the story . . . • The 2002 Florida Legislature amended § 163 such that local governments are authorized to pass ordinances that establish a system of special masters that will consider plan consistency challenges. • This consideration will be by certiorari. • If the local government does not establish a special master procedure, plan challenges will be heard by a circuit court at a de novo hearing.

  40. The Site Today Shidel Home

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