Opinion
Case No. 1D00-3538 1D00-3555.
Opinion filed August 22, 2002. Rehearing Denied December 19, 2002.
An appeal from an order of the Circuit Court for Walton County. Lewis Lindsey, Judge.
Robert A. Butterworth, Attorney General; Jonathan A. Glogau, Special Counsel, Tallahassee, for Robert A. Butterworth, Appellant.
W. Douglas Moody, Jr. of Graham, Moody Sox; J. Riley Davis of Katz, Kutter, Haigler, Alderman, Bryant Yon, P.A., Tallahassee, for Edgewater Beach Owners Association, Inc., Appellant.
W. Douglas Hall, Martha Harrell Chumbler, Nancy G. Linnan of Carlton, Fields, Ward, Emmanuel, Smith, Cutler, P.A., for Grand Dunes and KPM, Appellees.
Edgewater Beach Owners Association, Inc. and Robert A. Butterworth, Attorney General of Florida, ("appellants") seek review of an order dismissing their action for injunction filed under section 163.3125, Florida Statutes (1995), and granting final judgment in favor of Grand Dunes and KPM ("developers"). Although the trial court erred in finding that appellants lacked standing, we affirm the trial court's order because the developers have statutory vesting rights in the development, exempting them from complying with Walton County's comprehensive plan. Because we affirm on the basis of statutory vesting, we decline to address the remaining issue on appeal.
In 1982, Walton County ("County") approved development of a six-phase condominium project containing 476 residential units. The project was authorized as a Development of Regional Impact (DRI). The County issued Resolution 82-12, authorizing construction of the project without any conditions. In 1984, Phase I and II consisting of 175 total units were completed. Edgewater Beach Owners Association, Inc. ("Association") is a condominium association and the owner of Phases I and II. The developers own the remaining undeveloped property.
As the 1982 development order had an expiration date of June 8, 1992, KPM sought an extension of the build out date and expiration date. In 1993, the County issued Resolution 93-2, which extended the expiration date of the original development order. Resolution 93-2 also approved KPM's proposed design changes, which lowered the density in Phase III from 42 units to 19 townhomes. The resolution conditionally approved construction in Phases IV through VI at the 1982 levels, subject to a traffic study. The County concluded that the amendment to the 1982 order was not a substantial deviation and required no further DRI review under chapter 380, Florida Statutes.
The Association sought review of the County's 1993 resolution with the Florida Land and Water Adjudicatory Commission ("FLWAC"). FLWAC dismissed the appeal for lack of standing, stating that the Association was not a permissible party under chapter 380, Florida Statutes, to appeal to FLWAC. This Court determined that chapter 380, Florida Statutes, permitted the Association to appeal to FLWAC and remanded for further proceedings. Edgewater Beach Owners Ass'n v. Bd. of County Comm'rs of Walton County, 645 So.2d 541 (Fla. 1st DCA 1994). On remand, FLWAC found that the Association did not adequately allege an adverse effect in order to establish standing. In addition, FLWAC held that the DRI was not abandoned and that the County had the discretion to revive the 1982 DRI. On appeal, this Court affirmed FLWAC's decision. Edgewater Beach Owners Ass'n v. Bd. of County Comm'rs of Walton County, 694 So.2d 43 (Fla. 1st DCA 1997). The Association did not file any other action regarding Resolution 93-2.
In October 1995, the developers filed a Notice of Proposed Change, seeking to construct only two additional phases rather than four. The developers proposed building 89 units in Phase III and 89 units in Phase IV, each phase consisting of 20 stories. The County approved this development plan by issuing Resolution 95-82 as an amendment to the 1982 development order, as amended by Resolution 93-2. The Resolution further stated that the "DRI project is vested from application of the 1993 Walton County Comprehensive Plan pursuant to Section 163.3167(8), Florida Statutes" for development rights to 301 condominium units, the number of units allowed under the 1982 development order. The County's 1993 comprehensive plan imposed a four-story height restriction and limited the density of development to 12 units per acre.
The Association filed an appeal of this resolution with FLWAC, arguing that the changes in the development were not vested from compliance with the comprehensive plan. FLWAC upheld the Association's challenge to Resolution 95-82. This Court, however, determined that, based upon the record, the Association did not have standing to maintain the action before FLWAC. Grand Dunes v. Walton County, 714 So.2d 473 (Fla. 1st DCA 1998). The Court vacated FLWAC's order and remanded the case with directions to dismiss the petition for lack of standing. Id. at 475.
On March 7, 1996, the Association filed a complaint against Walton County, Grand Dunes and KPM, pursuant to section 163.3215, Florida Statutes, seeking to enjoin any development under Resolution 95-82. It challenged the validity of Resolution 95-82, claiming that it was inconsistent with the county's comprehensive plan. Grand Dunes and KPM responded that their rights to complete development vested under section 163.3167(8), Florida Statutes (1995), and under the common law principle of equitable estoppel. On December 16, 1998, Robert A. Butterworth, Attorney General, moved to intervene in the action, claiming that the issue of vested rights was an issue of statewide importance. The parties stipulated that the development amended by Resolution 95-82 would be inconsistent with the density requirements of the 1993 comprehensive plan but for the vesting of rights under statute or common law.
The Association's complaint filed in this proceeding only challenged Resolution 95-82. Contrary to the dissent's assertion, the Association could not and did not challenge the County's decision in Resolution 93-2 to revive the 1982 DRI. The Association filed the instant proceeding under section 163.3215, Florida Statutes (1995), asserting only that Resolution 95-82 was inconsistent with the County's comprehensive plan. Section 163.3215, Florida Statutes, only permits the Association to challenge a development order on the basis that it is inconsistent with the comprehensive plan. In addition, the revival issue has previously been litigated before FLWAC in a separate proceeding. In January 1993, pursuant to section 380.07, Florida Statutes, the Association appealed to FLWAC the Board of County Commissioners' January 1993 decision to revive the 1982 DRI via Resolution 93-2. FLWAC held that the Association lacked standing to appeal the resolution to FLWAC but also found that the DRI was not abandoned and that the County had the discretion to revive the 1982 DRI. Edgewater Beach Owners Ass'n v. Bd. of County Comm'rs of Walton County, No. LW-95-056 (FLWAC Oct. 24, 1995). This Court affirmed FLWAC's final order on appeal. Edgewater Beach Owners Ass'n v. Bd. of County Comm'rs of Walton County, 694 So.2d 43 (Fla. 1st DCA 1997).
More importantly, the Association did not argue below at trial in this proceeding that the County improperly revived the DRI; rather the Association merely argued that any changes to the original development order must comply with the comprehensive plan in effect at the time of the change. The Association also did not raise the revival issue in this appeal. Therefore, the issue of the County's improper revival of the 1982 DRI is not properly before this Court for review. See F.M.W. Props., Inc. v. People's First Fin. Sav. and Loan Ass'n, 606 So.2d 372 (Fla. 1st DCA 1992).
At trial, the Association's president testified that some members' ocean views would be blocked by the development which would lower the members' property value. She further stated that the proposed development would place some of their recreational facilities in the shade until noon. After the Association rested, the developers orally moved to dismiss, stating that the motion was a bench trial equivalent to a motion for directed verdict.
The trial court dismissed the action finding that the appellants failed to establish that they were "an aggrieved or adversely affected party" as defined in section 163.3215(2), Florida Statutes (1995). The trial court further held that, even assuming the Association had standing, the developers had vested statutory and common law rights despite the attachment of conditions to the future construction of phases IV through VI in Resolution 93-2.
Determining whether a party has standing is a pure question of law to be reviewed de novo. See Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs of Putnam County, 757 So.2d 590 (Fla. 5th DCA 2000). Prior to 1985, the common law rule for standing applied to actions challenging a land use decision. Id. at 593. Under the common law rule, a party had to possess a legally recognized right that would be adversely affected by the land use decision in order to have standing to challenge that decision. Id.; see also Citizens Growth Mgmt. Coalition of West Palm Beach, Inc. v. City of West Palm Beach, 450 So.2d 204, 208 (Fla. 1984). The 1985 adoption of section 163.3215, Florida Statutes, however, liberalized the standing requirements by providing a right to enforce a comprehensive plan to parties having more than a general interest.Putnam County, 757 So.2d at 593; Southwest Ranches Homeowners Ass'n v. County of Broward, 502 So.2d 931 (Fla. 4th DCA 1987) (stating that "this section liberalizes standing requirements and demonstrates a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action").
To establish standing under section 163.3215(2), Florida Statutes, a party must demonstrate that it is an "aggrieved or adversely affected party" who will "suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan." As a remedial statute, section 163.3215, Florida Statutes, should be liberally construed to ensure standing for a party with a protected interest under the comprehensive plan who will be adversely affected by the local government's actions. See Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621 (Fla. 4th DCA 1999). The statute, therefore, gives citizens with adversely affected interests a significantly enhanced standing to challenge the consistency of development decisions with the local comprehensive plan. See Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4th DCA 2001).
Here, the Association alleged that the proposed development was inconsistent with its protected interests in density and intensity as limited under the 1993 comprehensive plan. At trial, the Association presented testimony of adverse effects to these interests if the development proceeded as approved. The Association's president testified that members' ocean views would be blocked by the development which would lower the members' property values. She further stated that the proposed development would place some of the Association's recreational facilities in the shade until noon. As an adjacent landowner, the Association has a more direct stake in the impact of the development than the general community. Under the liberalized standing requirements of section 163.3215, Florida Statutes, the Association, a group of property owners whose land adjoins the proposed development and stands to be directly affected by the alleged aspects of the development, has, therefore, shown standing to contest Resolution 95-82. Accordingly, the trial court erred in finding that the Association lacked standing to bring this action and dismissing its complaint for lack of standing.
Although the trial court erred in dismissing the Association's complaint for lack of standing, the error was harmless. It is harmless error when, absent the error, the same result would have been reached. See Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840 (Fla. 1st DCA 2000). Here, absent the finding that the Association lacked standing, the trial court correctly found that the developers were vested under section 163.3167(8), Florida Statutes, from complying with the County's 1993 comprehensive plan.
We review the trial court's interpretation of section 163.3167(8), Florida Statutes de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582 (Fla. 2000); Agency for Health Care Admin. v. Wilson, 782 So.2d 977 (Fla. 1st DCA 2001). Section 163.3167(8), Florida Statutes, provides that: "Nothing in this act shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to chapter 380 or who has been issued a final local development order and development has commenced and is continuing in good faith." As the present case involves a development of regional impact, this section must be read in pari materia with the requirements of section 380.06, Florida Statutes (1995). See State v. Fuchs, 769 So.2d 1006 (Fla. 2000) (stating that statutes relating to the same or closely related subject should be read in pari materia); Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla. 1981). Section 380.06, Florida Statutes, outlines the procedures for review and approval of a development of regional impact. Once approved as a DRI and a development order has been issued authorizing development, a project need not be subject to additional DRI review and approval under section 380.06, Florida Statutes, unless an amendment to the project involves a substantial deviation. § 380.06(19), Fla. Stat. (1995).
Section 380.06(19), Florida Statutes, provides for the local government to determine whether a proposed amendment to a DRI constitutes a substantial deviation. Here, the County specifically found in both the 1993 and 1995 resolutions that the amendments were not substantial deviations requiring further DRI review. On appeal, appellants do not challenge this determination. Because neither the 1993 nor the 1995 resolution involved substantial deviations, the changes did not require further DRI review.
The County's determination that the amendments were not substantial deviations is reviewable only by FLWAC. See §§ 380.06(19)(f)6 and 380.07, Fla. Stat. (1995).
As the amendments did not require further DRI review, the project did not lose its original authorization for DRI development in the 1982 resolution, which the 1993 and 1995 resolutions amended. Section 163.3167(8), Florida Statutes, specifically states that the developers have vested rights to complete "any development that has been authorized" as a DRI. When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words. Aetna Cas. Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla. 1992). Applying that standard here, the language of section 163.3167(8), Florida Statutes, is clear and unambiguous and should be given its plain meaning. By the plain meaning of the word "any," vesting attaches once the original DRI development order authorizes development. This vesting would continue until the development was subjected to another DRI review. That is, non-substantial deviations to the original DRI development order would not cause loss of the vesting rights to the original development plan. Under section 380.06(19), Florida Statutes, a substantial deviation would lead to a new DRI review and a new authorization for DRI development. Therefore, with a substantial deviation, a developer would lose any vested rights in the previous development, and new vested rights would arise under section 163.3167(8), Florida Statutes, for the new DRI authorization.
Here, the developers did not lose any vesting rights to the original development plan because the 1993 and 1995 resolutions were non-substantial deviations. Furthermore, the 1982 development order authorized unconditional development of the project. The developers were not required to obtain future development orders to complete Phases III through VI. Therefore, we affirm the trial court's finding that the 1993 and 1995 amendments did not limit or modify the developers' statutorily protected vesting rights to the 1982 development plan.
The Association and the Attorney General cite section 163.3194(1)(b), Florida Statutes (1995), for the proposition that the 1995 resolution must comply with the County's 1993 comprehensive plan. Section 163.3194(1)(b), Florida Statutes, states: "After a comprehensive plan, or element or portion thereof, 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." (emphasis added). This section only applies to land covered by the County's 1993 comprehensive plan. As discussed above, section 163.3167(8), Florida Statutes, removes the vested 1982 development area from the requirements of the 1993 comprehensive plan. Therefore, section 163.3194(1)(a), Florida Statutes, does not apply in this situation. As such, the amended development order need not be consistent with the comprehensive plan. Accordingly, the trial court did not err in finding that the developers were vested, under section 163.3167(8), Florida Statutes, from complying with the County's 1993 comprehensive plan.
We, therefore, affirm the trial court's entry of final judgment in favor of the developers.
AFFIRMED.
BARFIELD, J., CONCURS; BOOTH, J., DISSENTS WITH WRITTEN OPINION.
I must respectfully dissent from the majority's proposed affirmance. KPM, Appellee/developer, has cited no authority empowering the County to revive the expired 1982 DRI permit, and the developer did not meet the statutory requirement for vesting by continuing good faith development.
The majority holds that the Association has standing to sue pursuant to section 163.3125, Florida Statutes, a result with which I agree. I would further hold that the trial court erred in holding KPM has a vested statutory right in the development or the DRI. Our previous case of Edgewater Beach Owners Association v. Board of County Commissioners of Walton County, 694 So.2d 43 (Fla. 1st DCA 1997), rested solely on the standing issue and held the remaining issues, abandonment and authority to revive, were moot.
A claim of vesting requires proof that the project was not abandoned. KPM, however, presented no evidence of continuing good faith development as required by Florida Statute section 163.3167(8). In fact, the record is replete with evidence to the contrary. KPM's vesting argument is specious.
The original DRI permit, issued in 1982, had an expiration date of June 8, 1992. After completing the first two phases of the project in 1984, the original developer, Edgewater Development Associates, Ltd., conducted no further development and went bankrupt that same year. The project sat dormant, essentially abandoned for eight years, until KPM, Appellee herein, acquired the property in 1992 and timely applied for an extension of the permit before the expiration date of June 8, 1992. However, KPM later decided to withdraw its application, and the permit expired. KPM subsequently applied for an extension of the original build-out date of the 1982 permit, despite the fact that the permit had lapsed.
KPM's withdrawal of the application for extension is documented in a July 1992 letter from Shirl Williams, Administrative Supervisor for the Walton County Board of County Commissioners, to Doug Stowell of KPM, expressly acknowledging KPM's withdrawal of the application to extend. The letter stated that the 1982 development order had expired and advised that KPM would have to reapply for a new permit, undergo DRI review for any further development of the property and comply with the current comprehensive plan.
At a public hearing before the Board of County Commissioners on December 29, 1992, the attorney for the appellant condominium association pointed out that an "extension" of the 1982 permit would actually operate as a revival of the expired permit, and that the County had no authority to revive a defunct permit. KPM was unable to offer any authority on which the County could rely to resurrect an expired DRI permit, and indeed no such authority exists. Nonetheless, in January of 1993, the commission members decided to revive the expired permit, apparently under a vesting rationale.
The public hearing took place in two parts, the first being in December 1992 and the second in January 1993. Although a tape of the December 1992 part of the hearing appears in the record on appeal, no such tape or transcript of the January 1993 portion was provided.
The controlling state statute does not provide for revival of an expired DRI permit. The County's authority to act on DRI permits derives from section 380.06, Florida Statutes, also known as the DRI statute. This statute requires the County to establish a termination date in any DRI development order, and it provides that the County may grant an extension of a DRI permit while the permit is in effect. However, there is no provision in the statute allowing for the revival of an expired development order, nor does any local ordinance or case law precedent empower the County to revive a permit once it has expired. Therefore, the action of the County in reviving the expired permit was ultra vires, and thus without legal effect.
As for vesting, the statute plainly requires continuing good faith pursuit of development as a prerequisite to the vesting of development rights under an existing permit. Thus, section 163.3167(8) provides that rights will vest under a previously issued development permit, exempting a developer from complying with a new comprehensive plan only where "development has commenced and is continuing in good faith."
Here, the original developer did no further development after 1984. Once that company went bankrupt, the bank holding the mortgage purchased the undeveloped portion of the property and formed a company called EAB to act as the substitute developer. In filings with the Bureau of Condominiums, EAB declared that it had no intention of carrying out any further condominium development on the property. Indeed, no development took place between 1984 and 1992, when KPM purchased the property and withdrew its application for extension of the permit.
The County should have treated the development as abandoned. In failing to do so, the County misapplied the vesting statute. The developer did not meet the requirements of section 163.3167(8) for vesting, since the development was not continuing in good faith so as to vest any rights under the permit.
Moreover, Appellants pointed out at the December 1992 hearing that, under the local land development code, failure to continue in good faith to complete a project is considered abandonment of the project. Therefore, under local laws as well as under the vesting statute, the project should have been considered dead, and KPM should have been required to reapply for a permit under the DRI statute. Additionally, the Florida Condominium Act, section 718.403, Florida Statutes, provides that a developer authorized to build a phase development must build out the project within seven years of the time it records its declaration of condominium. Here, the declaration of condominium was recorded in June of 1984, thus, under chapter 718 the deadline to complete the Edgewater project would have been June of 1991.
This case aptly illustrates the dangers inherent in misapplying the vesting statute. Development on the project ceased in 1984, the project remained abandoned for at least eight years, the original permit expired, and over the course of some twenty years the intensity and density of the planned project changed significantly. By the majority's view, these changes are allowed under the vesting statute, without further DRI review and despite major changes in the local comprehensive plan. The majority's holding will surely cause a considerable environmental impact and subject this coastal area to an unforeseen degree of development. Such a result is exactly what Florida's DRI and comprehensive planning laws aim to avoid, and the majority's decision in the present case will encourage further thwarting of our state's land use laws, defeating their very intent.
The County should have required KPM to apply for a new permit, undergo DRI review for any further development of the property, and comply with the current comprehensive plan. Therefore, I would reverse the decision of the Circuit Court.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.